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. PATTERN
. JURY

- CHARGES -

— - General Negligence,
- Intentional Personal Torts &
. Workers’ Compensation —

TEXAS
PATTERN JURY CHARGES

General Negligence * Intentional Personal Torts

Workers? Compensation

TEXAS
PATTERN JURY CHARGES

General Negligence * Intentional Personal Torts

Workers’ Compensation

Prepared by the
COMMITTEE
on
PATTERN JURY CHARGES
of the
STATE BAR OF TEXAS

Austin 2020

The State Bar of Texas, through its Texas Bar Books Department, publishes practice books pre-
pared and edited by knowledgeable authors to give practicing lawyers as much assistance as
possible. The competence of the authors ensures outstanding professional products, but, of
course, neither the State Bar of Texas, the editors, nor the authors make either express or
implied warranties in regard to their use. Each lawyer must depend on his or her own knowl-
edge of the law and expertise in the use or modification of these materials.

IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS,
we inform you that (1) this written material was not intended or written by the author(s) to be
used for the purpose of avoiding federal penalties that may be imposed on a taxpayer; (2) this
written material cannot be used by a taxpayer for the purpose of avoiding penalties that may be
imposed on the taxpayer; (3) this written material cannot be used in promoting, marketing, or
recommending to another party any tax-related transaction or matter; and (4) a taxpayer should
seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

The use of the masculine gender throughout this publication 1s purely for literary convenience
and should, of course, be understood to include the feminine gender as well.

International Standard Book Number: 978-1-938873-88-1

€ 1969, 1973, 1987, 1989, 1991, 1994, 1996, 1998,
2000, 2002, 2004—2006, 2008, 2010, 2012, 2014, 2016, 2018, 2020
State Bar of Texas
Austin, Texas 78711

All rights reserved. Permission is hereby granted for the copying of pages or portions of pages
of this publication by a photocopy or other similar process or by manual transcription, by or
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Printed in the United States of America

Texas Pattern Jury Charges—General Negligence, Intentional Personal Torts & Workers' Com-
pensation was formerly titled Texas Pattern Jury Charges—General Negligence & Intentional
Personal Torts. Texas Pattern Jury Charges—General Negligence & Intentional Personal Torts
was formerly titled Texas Pattern Jury Charges—General Negligence & Motor Vehicles. Texas
Pattern Jury Charges—General Negligence & Motor Vehicles was formerly titled Texas Pattern
Jury Charges, Volume 1.

To the memory of
Russell H. McMains, 1946—2009,
whose contributions to Texas jurisprudence,
and particularly the Texas Pattern Jury Charges,
will be with us forever.

The General Negligence, Intentional Personal Torts & Workers' Com-
pensation Committee would like to express its sincere and heartfelt grat-
itude to Vickie Tatum for her forty years of service on behalf of the State
Bar of Texas and, in particular, the incalculable contributions, counsel,
and collegiality that she has provided to this Committee during the
course of its work to publish the best Texas Pattern Jury Charges possi-
ble. Her steady hand, sage advice, and consistent presence have been a
tremendous guiding force for this Committee and will be sorely missed
by all of its members.

Judicial history teaches that broad issues and accepted definitions suffice
and that a workable jury system demands strict adherence to simplicity in

jury charges.

—Judge Jack Pope, in Lemos v. Montez,
680 S.W.2d 798, 801 (Tex. 1984)

COMMITTEE ON PATTERN JURY CHARGES

General Negligence * Intentional Personal Torts
Workers? Compensation

2018-2020

DANIEL B. LINEBAUGH, Chair (2018—2020)
PAULA KNIPPA, Vice-Chair (2019-2020), Chair (2020-2021)
ERIC J. MAYER, Vice-Chair (2018-2019)

RYAN G. ANDERSON

W. STEPHEN BENESH
DUSTIN B. BENHAM
MERRITT CLEMENTS
ALISON WEBSTER COLVIN
LINDA DEDMAN

SAMMY FORD, IV

JOEY GONZALEZ

R. DEAN GRESHAM
LAURA LEE HALEY
DANIEL D. HOROWITZ, III
DONALD KIDD

NICHOLAS E. ZITO

HON. SHARON MCCALLY
HON. DARYL MOORE
HENRY L. MOORE

SEAN MICHAEL REAGAN

R. W. *RICKY" RICHARDS
HON. HYATTYE O. SIMMONS
THAD D. SPALDING
MICHAEL L. SPRAIN

BRANT JEFFREY STOGNER
HON. GISELA D. TRIANA
REBECCA VELA

TENNESSEE WILSON WALKER

COMMITTEE ON PATTERN JURY CHARGES—OVERSIGHT

HON. ANA ESTEVEZ, Vice-Chair

2018-2021
HON. JANE BLAND, Chair
HON. DAN HINDE, Chair

HON. JOHN P. DEVINE, Supreme Court Liaison

J. ARNOLD AGUILAR
BROCK C. AKERS
ALEXANDRA W. ALBRIGHT
SCOTT ARMSTRONG
KIRSTEN M. CASTANEDA
JAMES DEAN

HON. DIANE DEVASTO
MICHAEL W. EADY

HON. AIDA SALINAS FLORES
STEWART W. GAGNON
JOHN BLAISE GSANGER
MARY T. HENDERSON

JAY JACKSON

DAVID C. KENT

HON. ANDREW A. WRIGHT

SUSAN R. KLEIN
JEFFREY S. LEVINGER
H. E. MENDEZ

BRIAN MILLER

HON. EMILY MISKEL
JOYCE MOORE

HON. LANA MYERS
LADAWN H. NANDRASY
SARAH PATEL PACHECO
DAN POZZA

HON. ROBERT SCHAFFER
MICHAEL L. SLACK
HON. CATHERINE STONE
HON. TIMOTHY SULAK

STATE BAR OF TEXAS

2020-2021
LARRY P. MCDOUGAL, President
JOHN CHARLES “CHARLIE” GINN, Chair of the Board
REBEKAH STEELY BROOKER, Chair, Board Professional Development Subcommittee
SCOTT ROTHENBERG, Chair, Committee on Continuing Legal Education
TREY APFFEL, Executive Director

TEXAS BAR
BOOKS

SHARON SANDLE, Director
JILL HOEFLING, Assistant Director
VICKIE TATUM, Project Publications Attorney
ELMA E. GARCIA, Publications Attorney
COURTNEY H. GIESINGER, Publications Attorney
SARAH F. HENSON, Publications Attorney
SUSANNAH R. MILLS, Publications Attorney
JAMES W. NORMAN, Publications Attorney
MICHAEL AMBROSE, Senior Editor
COURTNEY CAVALIERE, Editor
THOMAS OSTMEYER, Editor
ROGER SIEBERT, Editor
TRAVIS RIDDLE, Production Supervisor
JENNIFER TOWNSEND, Production and Editorial Assistant
CYNTHIA DAY, Meeting Coordinator
LARA TALKINGTON, Marketing Coordinator
CONOR JENSEN, Website Manager
JENNIFER KARLSSON, Web Content Specialist
JENNIFER PEREZ, Web Content Specialist
A’NATYA DAVIS, Web Content Strategist

COMMITTEE ON PATTERN JURY CHARGES

General Negligence * Intentional Personal Torts

Workers? Compensation
1984—2018

Chairs

EDWARD F. SHERMAN, 1984—1994
EDUARDO R. RODRIGUEZ, 1994—1995
PATRICIA J. KERRIGAN, 1995-1998

GUY DON CHOATE, 1998—2004

BEN TAYLOR, 2005—2006
BROCK C. AKERS, 2007-2017

DANIEL B. LINEBAUGH, 2017-2018

Vice-Chairs

HON. FRANKLIN J. DouTHITT, 1984—1994
RUSSELL H. MCMAINS, 1994-1995
GILBERT T. ADAMS, JR., 1995—1998
PATRICIA J. KERRIGAN, 1998—2000

BROCK C. AKERS, 2000—2006

DANIEL B. LINEBAUGH, 2005-2008, 2016-2017

PATRICIA O'CONNELL ALVAREZ

RYAN G. ANDERSON

W. STEPHEN BENESH
HARVEY G. BROWN, JR.
HON. JEFF BROWN

H. ALAN CARMICHAEL
DANA LIVINGSTON COBB
JOHN W. CRAVEN
THOMAS H. CROFTS, JR
ALAN B. DAUGHTRY
HON. MARK D. DAVIDSON
RONALD D. DICKENS
PAUL (CHIP) FERGUSON

MICHAEL L. SLACK, 2009-2014

GREG C. WILKINS, 2017—2018

Members

NORBERTO FLORES
SAMMY FORD, IV

RICK FREEMAN

DAVID E. GARCIA

HON. ANNE L. GARDNER
LAWRENCE L. GERMER
ROBERT B. GILBREATH
ARTURO J. GONZÁLEZ
JAMES A. HALL

HON. GEORGE C. HANKS
JAY HARVEY

PRESTON E. HENRICHSON
LARRY WAYNE HICKS

DANIEL D. HOROWITZ, III
CHARLES R. HOUISSIERE III
JESSICA T. HUDGINS
MICHAEL JAMAIL
BERNARD G. JOHNSON
PHILIP W. JOHNSON
KEVIN JAMES KEITH
KEITH E. KISNER
STEVEN C. LAIRD

HON. SUSAN LARSEN
CURTIS W. LEISTER
HON. SCOTT R. LINK
BRIAN LOWENBERG
WILLIAM K. LUYTIES
ERIC J. MAYER

PAMELA JO MCCLAIN
OSCAR MENDEZ, JR.
FRED M. MISKO, JR.
HON. MARY L. MURPHY
CHARLES NOTEBOOM
HON. JAN P. PATTERSON
MICHAEL H. PATTERSON
RODNEY M. PATTERSON
TIMOTHY PATTON

HON. JACK POPE

HON. KAREN H. POZZA
Roy E. PRICE, JR.
PATRICE PUJOL

CARLOS QUINTANA
BARBARA RADNOFSKY
SEAN MICHAEL REAGAN
R. W. *RICKY" RICHARDS

Members

MARK R. ROBINIUS

RUBEN ROBLES

HON. DAVID RODRIGUEZ
FIDEL RODRIGUEZ, JR.
RICKY H. ROSENBLUM
STEVEN D. SELBE

EFREM D. SEWELL

HON. HYATTYE O. SIMMONS
TIMOTHY K. SINGLEY
RANDALL O. SORRELS
THAD D. SPALDING

JAMES KENNETH SPIVEY
SANDRA L. STERBA-BOATWRIGHT
BRANT JEFFREY STOGNER
ROBERT D. STOKES

SCOTT P. STOLLEY

HON. TIMOTHY M. SULAK
HON. KENT C. SULLIVAN
SUSAN RENEE SULLIVAN
TOBI TABOR

ALFORD I. TAYLOR
GUADALUPE VALDEZ TREVINO
ROBERT A. VALADEZ
REBECA VELA

CYNTHIA A. VILLANUEVA
TENNESSEE WILSON WALKER
D. MICHAEL WALLACH
TERRY WELDON

GLEN M. WILKERSON

MAX E. WRIGHT

HON. LINDA REYNA YANEZ
NICHOLAS E. ZITO

COMMITTEE ON PATTERN JURY CHARGES
Civil
1987-1988

J. HADLEY EDGAR, Chair
HON. WILLIAM L. HUGHES, JR., Vice-Chair

FRANK L. BRANSON II RICHARD W. MITHOFF, JR.
J. CARLISLE DEHAY HON. BOB E. SHANNON
RUSSELL H. MCMAINS B. LEE WARE, JR.

O. J. WEBER

CONTENTS

|j c. ——————MTT xxvil
PREFACE TO THE 2020 EDITION... necks sees RR HE EC E EET ECHEOES Rel XXix
CHANGES IN THE 2070 EDITION sino Coi Re RI URGE RR SHACAT DR Rea ees XXXI
INTRODUCTION. recorro PAGS EPP ROSH ER gr E EROR RO ic gis Re eap xxxiii
CHAPTER 1 ADMONITORY INSTRUCTIONS
PIC LI Instructions to Jury Panel before Voir Dire Examination. ..... 3
PJC 1.2 Instructions to Jury after Jury Selection ................... 5
PIC L3 Charge of the Court ...... 0.0... ccc cece cece eens 9
PJC 1.4 Additional Instruction for Bifurcated Trial................. 20
PIC 1,5 Instructions to Jury after Verdict. ......... 0.0 cee eee eee 22
PJC 1.6 Instruction to Jury If Permitted to Separate ................ 23
PIC 1.7 Instruction If Jury Disagrees about Testimony .............. 24
PJC 1.8 Circumstantial Evidence (Optional) .................00005 25
PJC 1.9 Instructions to Deadlocked Jury n... nannan nunun 26
PJC 1.10 Privilege—Generally No Inference................02+2005 27
PIC LI Fifth Amendment Privilege—Adverse Inference
May Be Considered... esses 28
PJC 1.12 Parallel Theories on Damages............. 00 cece eee 29
PJC 1.13 Instruction on Spoliation .......... 0... cece eee ee 30

CONTENTS

CHAPTER 2
PJC 2]
PJC 22
PIC 23

PJC 2.4

CHAPTER 3
PJC 3.1
PIC 3.2
PJC 3.3
PJC 3.4

PJC 3.5

CHAPTER 4

PJC 4.1

PJC 4.2
PJC 4.3

PJC 4.4

CHAPTER 5
PJC 5.1
PJC 52

PI 5

PIC 5.5

xvi

BASIC DEFINITIONS IN NEGLIGENCE ACTIONS

Negligence and Ordinary Care............. 0.002 cece
High Degree of Care ..... 00... eee eee eens
Child's Degree of Care. ... 0.0... eee eee eee

Proximate Cause... 0.2.0.0... cc cece n

INFERENTIAL REBUTTAL INSTRUCTIONS

New and Independent Cause ................00 eee eee
Sole Proximate Cause. ....... 0... cee cece eee
Emergency «1. sede ede dae eee e c dasa Rog ea cecus
Unavoidable Accident ........... 0. cece cece eese.

ACU Of God «ie Le c e E ed E RES

BASIC NEGLIGENCE QUESTIONS

Broad Form—Joint Submission of Negligence and
Proximate Cause... 0.0.0... ccc etn e eens

Standards for Recovery of Exemplary Damages.............
Proportionate Responsibility .......... 0.0... cee ee ee eee

Proportionate Responsibility If Contribution Defendant Is
Joined che Gis Ca ea iie da leoni E map une Angra them in need

NEGLIGENCE PER SE
Negligence Per Se and Common-Law Negligence...........

Negligence Per Se and Common-Law Negligence—Excuse . . .

Negligence Per Se—Simple Standard—Broad Form . ........
[PJC 5.4 is reserved for expansion.]

Statutory Dramshop Liability.............. 0.0... cee ee eee

PJC 5.6

CHAPTER 6

PJC 6.1

PJC 6.2

PJC 6.3

PJC 6.4

PJC 6.5

PJC 6.6

CHAPTER 7

PIC 7.1

PIC T4

PJC 7.3

PJC 7.4

PIC 7.3

PJC 7.6

PIC TT

PJC 7.8

PIC 7.9

PJC 7.10

PJC LH

PJC 7.12

Contents

Defense to Respondeat Superior Liability under Statutory
Dramshop Act or Common Law.............000.0e ee eens 78

INTENTIONAL PERSONAL TORTS
False Imprisonment—Question.............000 eee e ee eee 83

False Imprisonment—Instruction on Unlawful Detention by

Thteat «repr SES OPPETO m Soles 84
False Imprisonment—Instruction on Defense of Privilege to

Investigate Theft ........ llle 85
Malicious Prosecution. ........... 000 ees 86
Intentional Infliction of Emotional Distress ................ 88
Assault and Battery ...... 2... cece eee eee 89

THEFT LIABILITY

Owner of Property at Issue—Question...............020- 93
Theft of Property—Question........... 0... c eee eee eee 94
Theft of Service—Question. ........ 0... cece eee aes 98
Conversion of Property—Question..........0. 000 cence 101
Theft Damages—Question ........... 0... cece eee eee 102
Sample Instructions—Actual Damages for Theft............ 105
Additional Damages—Question .............0...00 eee eee 107
Attorney's Fees—Question......... 0.00.00 eee e eee eee ee 108
Conversion Damages—Question ............0 0: cece eens 111
Sample Instructions—Actual Damages for Conversion....... 114

Predicate Question and Instruction on Award of Exemplary
Damages for Conversion........... 00 0c eee eee eens 117

Question and Instruction on Exemplary Damages........... 119

xvli

CONTENTS

PJC 7.13

CHAPTER 10
PJC 10.1
PJC 10.2

PJC 10.3

PJC 10.4

PJC 10.5
PJC 10.6
PJC 10.7
PJC 10.8
PJC 10.9
PJC 10.10
PJC 10.11

PJC 10.12

PJC 10.13

PJC 10.14

CHAPTER 11
PJC 11.1
PJC 11.2

PIC 13

xviii

Question and Instruction for Imputing Liability for Exemplary
Damages PPPTI"""-----——MT 122

[Chapters 8—9 are reserved for expansion.]

AGENCY AND SPECIAL RELATIONSHIPS
Employee sto tle eC CER de E vds 127
Borrowed Employee— Liability of Borrowing Employer ..... 128

Borrowed Employee—Lending Employer's Rebuttal
Instruction. ..... 0... cece eee e 129

Borrowed Employee—Disjunctive Submission of Liability

of Lending or Borrowing Employer ...............00.000- 130
Employment as Defense under Workers’ Compensation Act... 131
Scope of Employment .............0 00 cece eens 133
Deviation 44 5e dh eda ut adbuc toes 134
Independent Contractor ........... 00 cece cece 135
Independent Contractor by Written Agreement.............. 137
Respondeat Superior—Nonemployee................00005 138
Joint Enterprise... 139
Negligent Entrustment—Reckless, Incompetent, or

Unlicensed Driver. ....... nue 00... c eee eee eee eee eee 142
Negligent Entrustment—Defective Vehicle ................ 146
Imputing Gross Negligence to a Corporation ............... 147
TRESPASS

Trespass Actions Generally—When to Apply (Comment)..... 153
Trespass to Real Property—Basic Question ................ 154

Damages Recoverable from Trespass to Real Property
(Comrüaent):: c: neh Ais Bi es eh eb ee ie 156

PJC 11.4

PJC 11.5

PJC 11.6

PJC 11.7

PJC 11.8

PJC 11.9

CHAPTER 12

PIC 12.1

PJC 12.2

PJC 12.3

PJC 12.4

PIC 12.5

PJC 12.6

CHAPTER 13

PIC 13.1

PJC 13.2

PJC 13.3

PJC 13.4

PJC 13.5

Contents

Intentional Trespass—Question and Instruction............. 158

Permanent vs. Temporary Injury (Frequency and Duration)—
Questions ainn ar EP RUPEE 159

Cost to Repair, Fix, or Restore (Temporary Injury to
Property)—Question and Instructions.................000- 161

Diminution in Market Value (Permanent Injury to
Property)—Questions and Instructions..................-. 163

Personal Injury Damages Resulting from Trespass—
Question and Instructions ........... 0... c cece eee ee eee 165

Personal Injury Damages Resulting from Trespass

Committed with Malice—Questions and Instructions........ 168
NUISANCE

Nuisance Generally—When to Apply (Comment)........... 173
Private Nuisance ......... 2... e cee eee eee eee eens 175
Public Nuisance. ....... 0.2... cece eee eee eens 178
Nature of Nuisance—Permanent or Temporary............. 182
Damages from Permanent Nuisance .................004- 184
Damages from Temporary Nuisance...............00 eee 189
ANIMAL INJURY

Owner or Possessor of Animal .............-00 0000 e ee eee 197
Dangerous Propensity of Domesticated Animal............. 199
Abnormally Dangerous Domesticated Animal.............. 200
Domesticated Animal That Is Not Abnormally Dangerous .... 202
Wild Animal. .......... nuenean nuaren 203

xix

CONTENTS

CHAPTER 14

PJC 14.1

CHAPTER 15

PJC 15.1

PJG IX

PIG 15.3

CHAPTER 16

PJC 16.1

PJC 16.2

PJC 16.3

PJC 16.4

PJC 16.5

PJC 16.6

PJC 16.7

CHAPTER 17

PIC 17.1

PIC 17.2

PJC 17.3

PJC 17.4

PIE ILS

DEFENSES

Limitations— Tolling by Diligence in Service............... 207

WORKERS' COMPENSATION—BURDEN OF PROOF ON JUDICIAL
REVIEW

Burden of Proof (Comment) ............. 00.0 cece eee ene 211
Consideration of Appeals Panel Decision (Comment) ........ 212

Weight to Be Given Opinion of Designated Doctor
(COMMENT) 3.) heise ky Rho bd bp ede bee edes 213

WORKERS’ COMPENSATION—EMPLOYMENT

Employee—Question........... 00 e cece eect eee eens 217
Independent Contractor—Question...............-..00 eee 219
Borrowed Employee—Question ..........0 0.0 cece eee eee 222
Excluded Employment—Question ............2...000000- 224
Employer with More Than One Business—Question......... 226
Out-of-State Employment and Injury—Question............ 228

Subcontracting to Avoid Compensation Liability—Question. .. 230

WORKERS' COMPENSATION—COURSE AND SCOPE OF
EMPLOYMENT

Injury in Course and Scope of Employment—Question....... 235
Heart Attack—Injury—Question.............0 00 esses 238
Not in Regular Course and Scope of Employment, or

Temporary Direction—Instruction. ...............00 eee eee 240
Personal Comfort—Instruction .............. 002 cece 241

Employee Injured While Engaged in Recreational, Social, or
Athletic Activities—Instruction...................000000. 242

PJC 17.6

PJC 17.7

PJC 17.8

CHAPTER 18

PJC 18.1

PJC 18.2

PJC 18.3

PJC 18.4

PJC 18.5

PJC 18.6

PJC 18.7

PJC 18.8

PJC 18.9

CHAPTER 19

PJC 19.1

PIC 19.2

PJC 19.3

CHAPTER 20

PJC 20.1

PJC 202

Contents

Employee Injured While Traveling (Comment)............. 243

Employee Injured While Traveling to or from Work—
T SPEO EROS eepo primini ae EE RO ELE SEPASDRSI GERI GU RN 244

Employee Injured While Traveling with Dual Purpose—
Instruction. «eise ue ee e t HERR RA S 246

WORKERS' COMPENSATION—DEFENSES AND EXCEPTIONS

Act of God—Question. 2.0.0... 0... ccc cence eee 249
Intoxication—Question ........ nauuna ccc eee ees 252
Self-Inflicted Injury—Question. ......... 0.0.0.0 ee eee eee 254
Injury Followed by Self-Inflicted Death—Question ......... 255
Intentional Act of Another Person—Question .............. 257
Employee's Intention to Injure Another—Question.......... 259
Horseplay—Question ....... 0... cc cece eens 260

Injurious Practices of Employees of Texas A&M University

System or Its Institutions, the University of Texas System or Its
Institutions, or the Texas Department of Transportation—

QUES TOT ze a an ach bce toting auitch ai a ate cdot E S ara 262

Election of Remedies—Question ............0.0 00 cee aes 265

WORKERS’ COMPENSATION—OCCUPATIONAL DISEASE

Occupational Disease—Question .............020 00 e ee eee 269
Date of Injury for Occupational Disease—Question ......... 273
Last Injurious Exposure—Question .............002e0000 215

WORKERS’ COMPENSATION—TIMELINESS OF RESPONDING,
FILING, AND DISPUTING

Waiver—Question ....... sss 279

Notice to Employer of Injury—Question .................. 281

xxi

CONTENTS

PJC 20.3

PJC 20.4

PJC 20.5

CHAPTER 21

PJC 21.1

CHAPTER 22

PIG 221

PIG 222

PJC 22.3

PJC 22.4

PJC 22.5

PJC 22.6

CHAPTER 23

PIC 23.1

PIC 23.2

PJC 23.3

PJC 23.4

PJC 23.5

PIC 23.6

PR 23.T

xxii

Good Cause for Delay in Notifying Employer—Question..... 283
Claim for Compensation to the Division—Question ......... 286
Good Cause for Delay in Filing Claim—Question........... 288

WORKERS' COMPENSATION—EXTENT-OF-INJURY DISPUTES

Extent of Injury—Question .......... 0.0. e eee esses 293

WORKERS’ COMPENSATION—AVERAGE WEEKLY WAGE

Average Weekly Wage—Question...............000 eee eee 299
Wages—Definition for Average Weekly Wage.............. 300
Average Weekly Wage—Definition...................00-. 301
Nonpecuniary Wages—Definition .................00005. 303
Similar Employees—Definition. ...............0. 2.0020 ee 304
Similar Services—Definition.............. 000: e eee eee 305

WORKERS’ COMPENSATION—DISABILITY, MAXIMUM MEDICAL
IMPROVEMENT, AND IMPAIRMENT

Producing Cause of Disability—Question.................. 309
Duration of Disability—Question .............0 0. eee e eee 311
Wages Earned During Disability—Question................ 312
Bona Fide Position of Employment—Question ............. 313

Date Bona Fide Position of Employment Offer Received—
Suhl PR 315

Weekly Earnings Offered through Bona Fide Position of
Employment—Question ......... 2... c eee cece eee eens 316

Negating Division’s Finding of Maximum Medical
Improvement; Seeking Determination of Not at Maximum
Medical Improvement—Question.............00 eee eee ee 317

PJC 23.8

PIC 239

PJC 23.10
PIC 23.11

PJC 23.12

PIC 23.13
PJC 23.14
PIC 23.15

PJC 23.16

CHAPTER 24
PJC 24.1

PJC 24.2

PJC 24.3

PJC 24.4
PJC 24.5

PJC 24.6

CHAPTER 25
PJC 25.1

PJC 252

PIC 25.3

Contents

Negating Division's Finding of Maximum Medical
Improvement and Impairment Rating; Seeking Alternate
Certification—Question. |... esee 319

Maximum Medical Improvement and Impairment Rating

(Multiple Alternative Impairment Ratings)—Question ....... 321
Producing Cause—Definition ................ 2. eee ee eee 323
Disability—Definition......... sss 324
Wages—Definition for Disability, Maximum Medical

Improvement, and Impairment ..................0000000 325
Bona Fide Position of Employment—Definition............ 326
Maximum Medical Improvement—Definition.............. 327
Impairment—Definition ............ 0.0... eee ee eee eee 328
Impairment Rating—Definition ..................0200005 329

WORKERS’ COMPENSATION—SUPPLEMENTAL INCOME BENEFITS
Supplemental Income Benefits Entitlement (Comment) ...... 333

Reduced Earnings as Direct Result of Impairment—

BUTS 334
Reduced Earnings as Direct Result of

Impairment—Instruction. .........ssseeeeeeee enses 335
Active Effort to Obtain Employment—Question............ 336
Active Effort to Obtain Employment—Instruction .......... 337
Refusal of Vocational Rehabilitation Services—Question . . . . . 339

WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS

Injury Causing Total Loss of Use—Question............... 343
Producing Cause of Total Loss of Use of Two Members—

Buca MP ———— 345
Duration of Total Loss of Use—Question.................. 347

xxili

CONTENTS

PJC 25.4

PIC 25,5

PJC 25.6

PIC 23,7

CHAPTER 26

PJC 26.1

PJC 26.2

PJC 26.3

PJC 26.4

PJC 26.5

CHAPTER 27

PJC 27.1

CHAPTER 28

PJC 28.1

PJC 28.2

PIC 28.3

PJC 28.4

PJC 28.5

PJC 28.6

PJC 28.7

XXlV

Total and Permanent Loss of Vision—Question............. 349
Spinal Injury Resulting in Paralysis—Question ............. 351
Incurable Insanity or Imbecility—Question ................ 353
Burns to the Body—Question ............sllsslessessss. 355

WORKERS’ COMPENSATION— DEATH BENEFITS

Death—Injury in Course and Scope of Employment Producing

Death—Question ........ sisse 359
Death—Eligible Spouse—Question ............. suus 362
Death—Eligible Child—Question.................000 000 364
Death—Eligible Grandchild—Question ................... 366
Death—Eligible Parent—Question ................000005- 368

WORKERS’ COMPENSATION—ATTORNEY'S FEES

Claimant's Attorney's Fees—Question................20.. 373

PERSONAL INJURY DAMAGES

Personal Injury Damages—Instruction Conditioning

Damages Questions on Liability ...... nnana nananana 377
Personal Injury Damages—Instruction on Whether

Compensatory Damages Are Subject to Income Taxes........ 378
Personal Injury Damages—Basic Question ................ 379
Personal Injury Damages—Injury of Spouse ............... 385
Personal Injury Damages—Injury of Minor Child ........... 388
Personal Injury Damages—Parents' Loss of Services of

Minor Child iua osxd ette En PRONG CONG RMS EWR GRRE 392
Personal Injury Damages—Exemplary Damages............ 394

PJC 28.8

PJC 28.9

PJC 28.10

PJC 28.11

CHAPTER 29

PIC 29.1

PIC 29.2

PIC 29,3

PJC 29.4

PJC 29.5

PIC 29.6

PJC 29.7

PJC 29.8

CHAPTER 30

PJC 30.1

PIC 302

PJC 30.3

Contents

Personal Injury Damages—Instruction in Cases Involving
Preexisting Injury or Condition...............2...0 eee eee 397

Personal Injury Damages—Exclusionary Instruction for
Failure to Mitigate. 2... 1. cee eee eee 400

Personal Injury Damages—Child’s Loss of Consortium—
Question about Parent’s Injury ............ 0.00 cee eee eee 402

Personal Injury Damages—Child’s Loss of Consortium—
Damages Question... 0.2... 0.0 cee eee ees 403

WRONGFUL DEATH DAMAGES

Wrongful Death Damages—Instruction Conditioning

Damages Questions on Liability.................0 0.0000 407
Wrongful Death Damages—Instruction on Whether

Compensatory Damages Are Subject to Income Taxes ....... 408
Wrongful Death Damages—Claim of Surviving Spouse. ..... 409
Wrongful Death Damages—Claim of Surviving Child....... 415
Wrongful Death Damages— Claim of Surviving Parents of

Minor Child. eiae graei ike anes dre acce ihe deese dodi 419
Wrongful Death Damages— Claim of Surviving Parents of

Adult Child da neret KA NE CREE A Rose A deat qe aA 422
Wrongful Death Damages—Exemplary Damages. .......... 425

Wrongful Death Damages—Apportionment of Exemplary
Damages... e ru ry per RR RS 428

SURVIVAL DAMAGES

Survival Damages—Instruction Conditioning Damages

Questions on Liability... 0.0.0... 431
Survival Damages—Instruction on Whether Compensatory

Damages Are Subject to Income Taxes..............2.-005 432
Survival Damages—Compensatory Damages .............. 433

XXV

CONTENTS

PJC 30.4 Survival Damages—Exemplary Damages ................. 437
CHAPTER 31 PROPERTY DAMAGES
PJC 31.1 Property Damages—Instruction Conditioning Damages
Questions on Liability ........... ee eee ees 443
PJC 31.2 Property Damages—Instruction on Whether
Compensatory Damages Are Subject to Income Taxes........ 444
PJC 31.3 Property Damages—- Total Destruction of Property........... 445
PJC 31.4 Property Damages—Partial Destruction of Property ......... 447
CHAPTER 32 PRESERVATION OF CHARGE ERROR
PJC 32.1 Preservation of Charge Error (Comment) .................. 453
PIC 32.2 Broad-Form Issues and the Casteel Doctrine (Comment) ..... 457
APPEND ok chee edhe doce Yero aderit Re a Pedo eo donc ee Re the veer de nhs 459
DTATUTES AND RULES CITED . ociach rk odes edere ete dacs 499
uc cid ITET PELLI 505
UTE T UNDE RR bad fee eb oe th EEE aoe eee A 515
HOW TO DOWMLOAD THIS BOOK ¢3.005020d4 der diuddgerediiegeaes dhe daedd 529

Xxvl

PREFACE

The Pattern Jury Charges (volume 1) Committee for this second edition has worked
for over three years on this keystone volume in the State Bar of Texas's PJC series. This
volume is greatly changed from its 1969 predecessor, both in content to reflect extensive
developments in Texas substantive and procedural law and in format to make it more
easily usable by lawyers and judges. The members of the Committee, whose names
appear on a preceding page, met for two days each month and spent much additional
time between meetings on research and drafting. They augmented their own consider-
able expertise through consultations with other lawyers and judges. Their hard work and
dedication were critical to the publication of this volume and are gratefully acknowl-
edged.

The Committee's work was admirably aided and supported by four Texas State Bar
presidents: Tom B. Ramey, Jr. (1984—85), Charles L. Smith (1985-86), Bill Whitehurst
(1986—87), and Joe H. Nagy (1987-88). The Committee also benefited greatly from the
help and advice of various members of the staff of the State Bar of Texas. Susannah R.
Mills, director of Books and Systems for the State Bar, worked closely with the Commit-
tee throughout all phases of its work. Vickie Tatum, project legal editor, was a member
of the Committee, participating in all meetings and deliberations, coordinating adminis-
trative matters, and providing excellent research and editing.

J. Hadley Edgar, Jr., is the chairman of the standing PJC Committee that oversees the
publication of all volumes. His support and advice were important elements in the suc-
cessful completion of this volume.

The Committee's board advisors were Charles L. Smith (1984—85), James L. Branton
(1985-86), and Charles M. Jordan (1986—87). Frank Weathered was the Texas Young
Lawyers Association representative (1985-87). Arturo González was the law student
representative (1986—87) and regularly attended and participated in meetings.

This Committee was aided by the fact that an earlier State Bar committee had pio-
neered the use of pattern jury charges in the original volume 1, published in 1969. That
committee was composed of—

Judge Walter E. Jordan, chair W. James Kronzer, Jr.
Judge Charles W. Barrow Judge James R. Meyers
Royal H. Brin, Jr. Judge Phil Peden

Judge Lewis Dickson George E. Pletcher
Judge Clarence A. Guittard Judge Truman E. Roberts
Gus M. Hodges Preston Shirley

Judge Quentin Keith Dean W. Turner

Rollins M. Koppel Judge Frank M. Wilson

xxvii

PREFACE

Finally, many members of the Texas bench and bar were kind enough to give the ben-
efit of their time and expertise in meeting with and advising the Committee, reading
drafts, and making suggestions. This book is ultimately a tribute to their concern with
achieving fairness and rationality in jury charge submissions in Texas.

—Edward F. Sherman, Chair

xxviii

PREFACE TO THE 2020 EDITION

The Pattern Jury Charges Committee on General Negligence, Intentional Personal
Torts & Workers' Compensation proudly presents its 2020 edition.

As many of you know, the objective of our Committee is to review and revise this
volume to ensure that it accurately reflects Texas law. Consequently, an essential part
of the Committee's work is to monitor Texas case law developments as well as the
enactment, amendment, or abrogation of statutes that implicate or affect topics
addressed in the most recent edition of what many refer to as "the Green Book" and
then update its contents accordingly. Sometimes this work even results in the incorpo-
ration of a new topic or issue altogether.

The Committee also annually reviews each and every chapter of the Green Book to
determine whether the authority cited in any given chapter remains good law or should
be updated to reflect new, clarifying, or superseding authority.

Of note, this edition incorporates a new instruction that, for the first time, addresses
the issue of the “eggshell plaintiff’ and advises the practitioner and jurist on how to
present this unique circumstance to the jury.

Also included is a significant update to the attorney's fees section of the chapter
addressing the Texas Theft Liability Act to conform to the Texas Supreme Court's
holding in Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex.
2019), as well as clarifying comments on who may recover attorney's fees by the court
in Agar Corp. v. Electro Circuits International, 580 S.W.3d 136 (Tex. 2019).

Our Committee, which consists of trial attorneys, appellate practitioners, members
of the judiciary, and legal scholars, strives to provide pattern questions and instruc-
tions that will aid both bench and bar in preparing the correct jury charge. We hope
that this edition achieves that objective.

—Paula Knippa, Chair

XXIX

CHANGES IN THE 2020 EDITION
The 2020 edition of Texas Pattern Jury Charges—General Negligence, Intentional
Personal Torts & Workers' Compensation includes the following changes from the
2018 edition:
1. This edition omits instructions and questions that address pre-2003 law. The
Comments under each PJC, where relevant, identify where the pre-2003 law

is included in the 2018 edition of this volume.

2. Child's degree of care—Revised discussion of Nabors Well Services, Ltd. v.
Romero, 456 S.W.3d 553, 564 (Tex. 2015) (2.3)

3. Basic negligence questions—Revised discussion of broad form (4.1) and
added comment about uninsured/underinsured motorist cases (4.1, 4.4)

4. Theft liability—Revised question about attorney's fees and revised Com-
ment to include discussion of Rohrmoos Venture v. UTSW DVA Healthcare,

LLP, 578 S.W.3d 469, 489 (Tex. 2019) (7.8)

5. Negligent entrustment—Revised instruction, question, and Comment
(10.12)

6. Nuisance—
a. Revised chapter title and all Comments to delete the term action
b. Revised instruction for private nuisance—intentional (12.2A)

7. Personal injury damages—

a. Revised comment on future medical care and added comment about
uninsured/underinsured motorist cases (28.3)

b. Revised exclusionary instruction for other condition and exclusionary
instruction for preexisting condition that is aggravated, and Comments

(formerly 28.8 and 28.9, now 28.8A and 28.8B)

c. Added instruction for asymptomatic preexisting injury or condition—
eggshell plaintiff (28.8C)

d. Renumbered following PJCs (28.9—28.11)

XXXl

CHANGES IN THE 2020 EDITION

8. Property damages—Added comment on salvage value for total destruction of
property (31.3)

9. Preservation of charge error—Revised Comment on broad-form issues and
the Casteel doctrine (32.2)

xxxil

INTRODUCTION

1. PURPOSE OF PUBLICATION

The purpose of this volume, like those of the others in this series, is to assist the bench
and bar in preparing the court's charge in jury cases. It provides definitions, instructions,
and questions needed to submit jury charges in actions arising from general negligence,
intentional personal torts, and workers' compensation. The pattern charges are sugges-
tions and guides to be used by a trial court 1f they are applicable and proper in a specific
case. Of course, the exercise of professional judgment by the attorneys and the judge is
necessary to resolve disputes in individual cases. The Committee hopes that this publica-
tion will prove as worthy a contribution as have the earlier Texas Pattern Jury Charges
volumes.

2. SCOPE OF PATTERN CHARGES

It is impossible to prepare pattern charges for every factual setting that could arise in
the areas covered herein. The Committee has tried to prepare charges that will serve as
guides in the usual types of litigation that might confront an attorney in a general negli-
gence or intentional personal torts case. However, a charge should conform to the plead-
ings and evidence of the particular case, and occasions will arise for the use of questions
and instructions not specifically addressed here.

3. USE OF ACCEPTED PRECEDENTS

The Committee has avoided recommending changes in the law and has based this
material on what it perceives the present law to be. It has attempted to foresee theories
and objections that might be made in a variety of circumstances but not to favor or disfa-
vor a particular position. In unsettled areas, the Committee generally has not taken a
position on the exact form of a charge. It has provided guidelines, however, in some
areas in which there is no definitive authority. Of course, trial judges and practitioners
should recognize that the Committee may have erred in its perceptions and that its rec-
ommendations may be affected by future appellate decisions and statutory changes.

4. PRINCIPLES OF STYLE

a. Broad form to be used when feasible. Rule 277 of the Texas Rules of Civil Pro-
cedure provides that “the court shall, whenever feasible, submit the cause upon broad-
form questions." Accordingly, the basic questions are designed to be accompanied by
one or more instructions. See Tex. R. Civ. P. 277—78. For further discussion, see PJC
32.2 regarding broad-form issues and the Casteel doctrine.

b. Simplicity. The Committee has sought to follow the court's admonition that “a
workable jury system demands strict adherence to simplicity in jury charges." Lemos v.

xxxili

INTRODUCTION

Montez, 680 S.W.2d 798, 801 (Tex. 1984). The Committee has, in a few instances,
attempted to simplify questions and instructions previously approved by the courts.

c. Replacing questions with instructions. This volume also reflects Supreme
Court of Texas precedents and Texas Rules of Civil Procedure amendments that have led
to replacing questions with instructions for many theories and defenses. Rule 277 forbids
inferential rebuttal questions (questions inquiring about facts that deny or rebut an ele-
ment of an opponent's cause of action or defense). An inferential rebuttal, if appropriate,
should be submitted by explanatory instruction. The use of instructions in chapter 3 for
such rebuttals as “new and independent cause," “emergency,” and “act of God" is con-
sistent with current Texas law.

d. Definitions and instructions. The supreme court has disapproved the practice
of embellishing standard definitions and instructions, Lemos, 680 S.W.2d 798, or adding
unnecessary instructions, First International Bank v. Roper Corp., 686 S.W.2d 602 (Tex.
1985). The Committee has endeavored to adhere to standard definitions and instructions.
Also, definitions are stated in general terms rather than in terms of the particular event or
names of the parties. A general form is deemed more appropriate for a definition and less
likely to be considered a comment on the weight of the evidence.

e. Placement of definitions and instructions in the charge. Definitions of terms
that apply to a number of questions should be given immediately after the general
instructions required by rule 226a of the Texas Rules of Civil Procedure. See Woods v.
Crane Carrier Co., 693 S.W.2d 377 (Tex. 1985). However, if a definition or instruction
applies to only one question or cluster of questions (e.g., damages questions), it should
be placed with that question or cluster. Specific guidance for placement of instructions
can be found in the comments to each PJC.

f. Burden of proof. As authorized by rule 277 of the Texas Rules of Civil Proce-
dure, it is recommended that the burden of proof be placed by instruction rather than by
inclusion in each question. When the burden is placed by instruction, it is not necessary
that each question begin: “Do you find from a preponderance of the evidence that . . ."
The admonitory instructions contain the following instruction, applicable to all ques-
tions:

Answer “yes” or “no” to all questions unless you are told otherwise. A
“ves” answer must be based on a preponderance of the evidence
[unless you are told otherwise]. Whenever a question requires an
answer other than “yes” or “no,” your answer must be based on a pre-
ponderance of the evidence [unless you are told otherwise].

The term “preponderance of the evidence" means the greater weight
of credible evidence presented in this case. If you do not find that a
preponderance of the evidence supports a “yes” answer, then answer
"no." A preponderance of the evidence is not measured by the number
of witnesses or by the number of documents admitted in evidence. For

XXXIV

Introduction

a fact to be proved by a preponderance of the evidence, you must find
that the fact is more likely true than not true.

g. Hypothetical examples. The names of hypothetical parties and facts have been
italicized to indicate that the names and facts of the particular case should be substituted.
In general, the name Paul Payne has been used for the plaintiff, Don Davis for an indi-
vidual defendant, Connie Contributor for a contribution defendant (third-party defendant
not sued by the plaintiff), Responsible Ray for a responsible third party, and Sam Settlor
for a settling person. ABC Company or ABC Corporation 1s used for an employer in an
agency relationship, XYZ Company for a borrowing employer, Tim Thomas for an
employee or agent, and ABC Railway for a railroad in a negligence per se case. Pete Pro-
vider is used for a provider of alcoholic beverages in a dramshop" case, David Driver
for a person to whom a vehicle has been entrusted, Edna Entrustor for an owner of a
vehicle who has entrusted it to another, Paul and Mary Payne for spouses or parents, and
Polly Payne and Paul Payne, Jr, for children. In wrongful death and survival cases,
Mary Payne is also used for the decedent.

5. COMMENTS AND CITATIONS OF AUTHORITY

The comments to each PJC provide a ready reference to the law that serves as a foun-
dation for the charge. The primary authonty cited herein is Texas case law. In some
instances, secondary authority—for example, Restatement (Second) of Torts—is also
cited. The Committee wishes to emphasize that secondary authority is cited solely as
additional guidance to the reader and not as legal authority for the proposition it follows.
Some comments also include variations of the recommended forms and additional ques-
tions or instructions for special circumstances.

6. SUBMISSION OF NEGLIGENCE PER SE

For cases involving only negligence per se or claims of both negligence per se and
common-law negligence, the Committee recommends a single broad-form question
accompanied by instructions or definitions informing the jury about both the statutory
and common-law standards.

In some situations, a broad submission should not be used. When it is uncertain
whether violation of a statute, ordinance, or regulation constitutes negligence per se, a
question phrased in the factual terms of the statute, along with a single broad-form ques-
tion on common-law negligence, is preferred. This method may avoid a retrial if an
appellate court disagrees with the trial court. The comments to PJC 5.1 provide a more
detailed account of the recommended forms of submission in various negligence per se
situations.

XXXV

INTRODUCTION

7. USING THE PATTERN CHARGES

Matters on which the evidence is undisputed should not be submitted by either
instruction or question. Conversely, questions, instructions, and definitions not included
in this volume may sometimes become necessary. Finally, preparation of a proper charge
requires careful legal analysis and sound judgment.

8. INSTALLING THE DIGITAL DOWNLOAD

The complimentary downloadable version of Texas Pattern Jury Charges—General
Negligence, Intentional Personal Torts & Workers' Compensation (2020 edition) con-
tains the entire text of the printed book. To install the digital download—

1. go to https://manage.texasbarpractice.com,
2. if prompted to log in, do so; and
3. in the “Downloadables” column, click the download button for this book's title.

Use of the digital download is subject to the terms of the license and limited war-
ranty included in the documentation at the end of this book and on the digital
download web pages. By accessing the digital download, you waive all refund privi-
leges for this publication.

9. FUTURE REVISIONS

The contents of questions, instructions, and definitions in the court's charge depend
on the underlying substantive law relevant to the case. This volume as updated reflects
all amendments to Texas statutes enacted through 2019. The Committee expects to pub-
lish updates as needed to reflect changes and new developments in the law.

XXXVl

CHAPTER 1

PIC 1.1

PJC 1.2

PJC 1.3

PJC 1.3A

PJC 1.3B

PJC 1.4

FJC 1,5

PJC 1.6

PJC 1.7

PJC 1.8

PJC 1.9

PJC 1.10

PJC 1.11

PJC 1.12

PJC 1.13

ADMONITORY INSTRUCTIONS

Instructions to Jury Panel before Voir Dire Examination. ...... 3
Instructions to Jury after Jury Selection .................... 5
Charge of the Court ...... 0.0... cc cece esses 9

Charge of the Court—Twelve-Member Jury .............. 9

Charge of the Court —Six-Member Jury ................. 13
Additional Instruction for Bifurcated Trial.................. 20
Instructions to Jury after Verdict........ 00.0.0 cee eee 22
Instruction to Jury If Permitted to Separate ................. 23
Instruction If Jury Disagrees about Testimony............... 24
Circumstantial Evidence (Optional) ..............0..0 0.00 25
Instructions to Deadlocked Jury ........... 0.0 cece eee 26
Privilege—Generally No Inference..................2.2005 27

Fifth Amendment Privilege—Adverse Inference

May Be Considered ......... 0.00 cece eee 28
Parallel Theories on Damages...........00 000 cece eee 29
Instruction on Spoliation ........... 0. eee eee eee eee 30

ADMONITORY INSTRUCTIONS PJC 1.1

PJC 1.1 Instructions to Jury Panel before Voir Dire Examination

[Brackets indicate optional, alternative, or instructive text.]

MEMBERS OF THE JURY PANEL:

Thank you for being here. We are here to select a jury. Twelve [six] of you
will be chosen for the jury. Even if you are not chosen for the jury, you are per-
forming a valuable service that is your right and duty as a citizen of a free
country.

Before we begin: Turn off all phones and other electronic devices. While you
are in the courtroom, do not communicate with anyone through any electronic
device. [For example, do not communicate by phone, text message, email mes-
sage, chat room, blog, or social networking websites such as Facebook, Twitter,
or Myspace.] [I will give you a number where others may contact you in case
of an emergency.] Do not record or photograph any part of these court proceed-
ings, because it 1s prohibited by law.

If you are chosen for the jury, your role as jurors will be to decide the dis-
puted facts in this case. My role will be to ensure that this case is tried in accor-
dance with the rules of law.

Here is some background about this case. This is a civil case. It is a lawsuit

that is not a criminal case. The parties are as follows: The plaintiff is

, and the defendant is . Representing the plaintiff is

, and representing the defendant is . They will ask you

some questions during jury selection. But before their questions begin, I must
give you some instructions for jury selection.

Every juror must obey these instructions. You may be called into court to
testify about any violations of these instructions. If you do not follow these
instructions, you will be guilty of juror misconduct, and I might have to order a
new trial and start this process over again. This would waste your time and the
parties’ money, and would require the taxpayers of this county to pay for
another trial.

These are the instructions.

1. To avoid looking like you are friendly with one side of the case, do
not mingle or talk with the lawyers, witnesses, parties, or anyone else
involved in the case. You may exchange casual greetings like “hello” and
“good morning.” Other than that, do not talk with them at all. They have to

PJC 1.1 ADMONITORY INSTRUCTIONS

follow these instructions too, so you should not be offended when they fol-
low the instructions.

2. Do not accept any favors from the lawyers, witnesses, parties, or
anyone else involved in the case, and do not do any favors for them. This
includes favors such as giving rides and food.

3. Do not discuss this case with anyone, even your spouse or a friend,
either in person or by any other means [including by phone, text message,
email message, chat room, blog, or social networking websites such as Face-
book, Twitter, or Myspace]. Do not allow anyone to discuss the case with
you or in your hearing. If anyone tries to discuss the case with you or in your
hearing, tell me immediately. We do not want you to be influenced by some-
thing other than the evidence admitted in court.

4. The parties, through their attorneys, have the right to ask you ques-
tions about your background, experiences, and attitudes. They are not trying
to meddle in your affairs. They are just being thorough and trying to choose
fair jurors who do not have any bias or prejudice in this particular case.

5. Remember that you took an oath that you will tell the truth, so be
truthful when the lawyers ask you questions, and always give complete
answers. If you do not answer a question that applies to you, that violates
your oath. Sometimes a lawyer will ask a question of the whole panel instead
of just one person. If the question applies to you, raise your hand and keep it
raised until you are called on.

Do you understand these instructions? If you do not, please tell me now.

The lawyers will now begin to ask their questions.

COMMENT

When to use. The foregoing oral instructions are prescribed in Tex. R. Civ. P.
226a. The instructions, “with such modifications as the circumstances of the particular
case may require,” are to be given to the jury panel “after they have been sworn in as
provided in Rule 226 and before the voir dire examination."

Rewording regarding investigation by jurors. In an appropriate case, the sen-
tence “Do not post information about the case on the Internet before these court pro-
ceedings end and you are released from jury duty" may be added in the second
paragraph of this instruction, and the instructions admonishing against independent
investigation by the jurors contained in item 6 of PJC 1.2 may be included in the
instruction.

ADMONITORY INSTRUCTIONS PJC 1.2

PJC 1.2 Instructions to Jury after Jury Selection

[Brackets indicate optional or instructive text.]
[Oral Instructions]

MEMBERS OF THE JURY:

You have been chosen to serve on this jury. Because of the oath you have
taken and your selection for the jury, you become officials of this court and
active participants in our justice system.

[Hand out the written instructions.]

You have each received a set of written instructions. I am going to read them
with you now. Some of them you have heard before and some are new.

1. Turn off all phones and other electronic devices. While you are in
the courtroom and while you are deliberating, do not communicate with any-
one through any electronic device. [For example, do not communicate by
phone, text message, email message, chat room, blog, or social networking
websites such as Facebook, Twitter, or Myspace.] [I will give you a number
where others may contact you in case of an emergency.] Do not post infor-
mation about the case on the Internet before these court proceedings end and
you are released from jury duty. Do not record or photograph any part of
these court proceedings, because it is prohibited by law.

2. To avoid looking like you are friendly with one side of the case, do
not mingle or talk with the lawyers, witnesses, parties, or anyone else
involved in the case. You may exchange casual greetings like “hello” and
“good morning.” Other than that, do not talk with them at all. They have to
follow these instructions too, so you should not be offended when they fol-
low the instructions.

3. Do not accept any favors from the lawyers, witnesses, parties, or
anyone else involved in the case, and do not do any favors for them. This
includes favors such as giving rides and food.

4. Do not discuss this case with anyone, even your spouse or a friend,
either in person or by any other means [including by phone, text message,
email message, chat room, blog, or social networking websites such as Face-
book, Twitter, or Myspace]. Do not allow anyone to discuss the case with
you or in your hearing. If anyone tries to discuss the case with you or in your

PJC 1.2 ADMONITORY INSTRUCTIONS

hearing, tell me immediately. We do not want you to be influenced by some-
thing other than the evidence admitted in court.

5. Do not discuss this case with anyone during the trial, not even with
the other jurors, until the end of the trial. You should not discuss the case
with your fellow jurors until the end of the trial so that you do not form opin-
ions about the case before you have heard everything.

After you have heard all the evidence, received all of my instructions,
and heard all of the lawyers' arguments, you will then go to the jury room to
discuss the case with the other jurors and reach a verdict.

6. Do not investigate this case on your own. For example, do not:

a. try to get information about the case, lawyers, witnesses, or
issues from outside this courtroom;

b. goto places mentioned in the case to inspect the places;

c. inspect items mentioned in this case unless they are presented
as evidence in court;

d. look anything up in a law book, dictionary, or public record to
try to learn more about the case;

e. look anything up on the Internet to try to learn more about the
case; or

f. let anyone else do any of these things for you.

This rule is very important because we want a trial based only on evi-
dence admitted in open court. Your conclusions about this case must be
based only on what you see and hear in this courtroom because the law does
not permit you to base your conclusions on information that has not been
presented to you in open court. All the information must be presented in
open court so the parties and their lawyers can test it and object to it. Infor-
mation from other sources, like the Internet, will not go through this import-
ant process in the courtroom. In addition, information from other sources
could be completely unreliable. As a result, if you investigate this case on
your own, you could compromise the fairness to all parties in this case and
jeopardize the results of this trial.

7. Do not tell other jurors about your own experiences or other peo-
ple's experiences. For example, you may have special knowledge of some-
thing in the case, such as business, technical, or professional information.
You may even have expert knowledge or opinions, or you may know what

ADMONITORY INSTRUCTIONS PJC 1.2

happened in this case or another similar case. Do not tell the other jurors
about it. Telling other jurors about it is wrong because it means the jury will
be considering things that were not admitted in court.

8. Do not consider attorneys’ fees unless I tell you to. Do not guess
about attorneys' fees.

9. Do not consider or guess whether any party is covered by insurance
unless I tell you to.

10. During the trial, if taking notes will help focus your attention on the
evidence, you may take notes using the materials the court has provided. Do
not use any personal electronic devices to take notes. If taking notes will dis-
tract your attention from the evidence, you should not take notes. Your notes
are for your own personal use. They are not evidence. Do not show or read
your notes to anyone, including other jurors.

You must leave your notes in the jury room or with the bailiff. The bailiff
is instructed not to read your notes and to give your notes to me promptly
after collecting them from you. I will make sure your notes are kept in a safe,
secure location and not disclosed to anyone.

[You may take your notes back into the jury room and consult them
during deliberations. But keep in mind that your notes are not evidence.
When you deliberate, each of you should rely on your independent recollec-
tion of the evidence and not be influenced by the fact that another juror has
or has not taken notes. After you complete your deliberations, the bailiff will
collect your notes.]

When you are released from jury duty, the bailiff will promptly destroy
your notes so that nobody can read what you wrote.

11. I will decide matters of law in this case. It is your duty to listen to
and consider the evidence and to determine fact issues that I may submit to
you at the end of the trial. After you have heard all the evidence, I will give
you instructions to follow as you make your decision. The instructions also
will have questions for you to answer. You will not be asked and you should
not consider which side will win. Instead, you will need to answer the spe-
cific questions I give you.

Every juror must obey my instructions. If you do not follow these instruc-
tions, you will be guilty of juror misconduct, and I may have to order a new
trial and start this process over again. This would waste your time and the par-

PJC 1.2 ADMONITORY INSTRUCTIONS

ties’ money, and would require the taxpayers of this county to pay for another
trial.

Do you understand these instructions? If you do not, please tell me now.

Please keep these instructions and review them as we go through this case. If
anyone does not follow these instructions, tell me.

COMMENT

When to use. The foregoing instructions are prescribed in Tex. R. Civ. P. 226a.
The instructions, “with such modifications as the circumstances of the particular case
may require," are to be given to the jury *immediately after the jurors are selected for
the case."

ADMONITORY INSTRUCTIONS PJC 1.3

PJC 1.3 Charge of the Court
PJC 1.3A Charge of the Court —Twelve-Member Jury

[Brackets indicate optional or instructive text.]

MEMBERS OF THE JURY:

After the closing arguments, you will go to the jury room to decide the case,
answer the questions that are attached, and reach a verdict. You may discuss the
case with other jurors only when you are all together in the jury room.

Remember my previous instructions: Do not discuss the case with anyone
else, either in person or by any other means. Do not do any independent inves-
tigation about the case or conduct any research. Do not look up any words in
dictionaries or on the Internet. Do not post information about the case on the
Internet. Do not share any special knowledge or experiences with the other
jurors. Do not use your phone or any other electronic device during your delib-
erations for any reason. [I will give you a number where others may contact
you in case of an emergency.]

[Any notes you have taken are for your own personal use. You may take
your notes back into the jury room and consult them during deliberations, but
do not show or read your notes to your fellow jurors during your deliberations.
Your notes are not evidence. Each of you should rely on your independent rec-
ollection of the evidence and not be influenced by the fact that another juror
has or has not taken notes.]

[You must leave your notes with the bailiff when you are not deliberating.
The bailiff will give your notes to me promptly after collecting them from you.
I will make sure your notes are kept in a safe, secure location and not disclosed
to anyone. After you complete your deliberations, the bailiff will collect your
notes. When you are released from jury duty, the bailiff will promptly destroy
your notes so that nobody can read what you wrote.]

Here are the instructions for answering the questions.

1. Do not let bias, prejudice, or sympathy play any part in your deci-
sion.

2. Base your answers only on the evidence admitted in court and on
the law that is in these instructions and questions. Do not consider or discuss
any evidence that was not admitted in the courtroom.

PJC 1.3 ADMONITORY INSTRUCTIONS

3. You are to make up your own minds about the facts. You are the
sole judges of the credibility of the witnesses and the weight to give their tes-
timony. But on matters of law, you must follow all of my instructions.

4. Ifmy instructions use a word in a way that is different from its ordi-
nary meaning, use the meaning I give you, which will be a proper legal defi-
nition.

5. All the questions and answers are important. No one should say that
any question or answer is not important.

6. Answer “yes” or “no” to all questions unless you are told otherwise.
A “yes” answer must be based on a preponderance of the evidence [unless
you are told otherwise]. Whenever a question requires an answer other than
“yes” or “no,” your answer must be based on a preponderance of the evi-
dence [unless you are told otherwise].

The term “preponderance of the evidence" means the greater weight of
credible evidence presented in this case. If you do not find that a preponder-
ance of the evidence supports a “yes” answer, then answer “no.” A prepon-
derance of the evidence is not measured by the number of witnesses or by
the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true
than not true.

7. Do not decide who you think should win before you answer the
questions and then just answer the questions to match your decision. Answer
each question carefully without considering who will win. Do not discuss or
consider the effect your answers will have.

8. Do not answer questions by drawing straws or by any method of
chance.

9. Some questions might ask you for a dollar amount. Do not agree in
advance to decide on a dollar amount by adding up each juror's amount and
then figuring the average.

10. Do not trade your answers. For example, do not say, “I will answer
this question your way if you answer another question my way."

11. [Unless otherwise instructed] The answers to the questions must be
based on the decision of at least ten of the twelve jurors. The same ten jurors
must agree on every answer. Do not agree to be bound by a vote of anything
less than ten jurors, even if it would be a majority.

ADMONITORY INSTRUCTIONS PJC 1.3

As I have said before, if you do not follow these instructions, you will be
guilty of juror misconduct, and I might have to order a new trial and start this
process over again. This would waste your time and the parties’ money, and
would require the taxpayers of this county to pay for another trial. If a juror
breaks any of these rules, tell that person to stop and report it to me immedi-
ately.

efinitions, questions, and special instructions
Definit. quest. d special instruct
given to the jury will be transcribed here.]

Presiding Juror:

1. When you go into the jury room to answer the questions, the first
thing you will need to do is choose a presiding juror.

2. The presiding juror has these duties:

a. have the complete charge read aloud if it will be helpful to
your deliberations;

b. preside over your deliberations, meaning manage the discus-
sions, and see that you follow these instructions;

c. give written questions or comments to the bailiff who will give
them to the judge;

d. write down the answers you agree on;
e. get the signatures for the verdict certificate; and
f. notify the bailiff that you have reached a verdict.

Do you understand the duties of the presiding juror? If you do not, please tell
me now.

Instructions for Signing the Verdict Certificate:

1. [Unless otherwise instructed] You may answer the questions on a
vote of ten jurors. The same ten jurors must agree on every answer in the
charge. This means you may not have one group of ten jurors agree on one
answer and a different group of ten jurors agree on another answer.

2. Iften jurors agree on every answer, those ten jurors sign the verdict.

If eleven jurors agree on every answer, those eleven jurors sign the ver-
dict.

PJC 1.3 ADMONITORY INSTRUCTIONS

If all twelve of you agree on every answer, you are unanimous and only
the presiding juror signs the verdict.

3. All jurors should deliberate on every question. You may end up
with all twelve of you agreeing on some answers, while only ten or eleven of
you agree on other answers. But when you sign the verdict, only those ten
who agree on every answer will sign the verdict.

4. [Added if the charge requires some unanimity.] There are some spe-
cial instructions before Questions explaining how to answer those
questions. Please follow the instructions. If all twelve of you answer those
questions, you will need to complete a second verdict certificate for those
questions.

Do you understand these instructions? If you do not, please tell me now.

JUDGE PRESIDING

Verdict Certificate
Check one:

Our verdict is unanimous. All twelve of us have agreed to each and
every answer. The presiding juror has signed the certificate for all twelve of us.

Signature of Presiding Juror Printed Name of Presiding Juror

Our verdict is not unanimous. Eleven of us have agreed to each and
every answer and have signed the certificate below.

Our verdict is not unanimous. Ten of us have agreed to each and every
answer and have signed the certificate below.

Signature Name Printed

ADMONITORY INSTRUCTIONS PJC 1.3

QE pes opo ONLUS ghe 9

10.
11.

If you have answered Question No. [the exemplary damages
amount], then you must sign this certificate also.

Additional Certificate
[Used when some questions require unanimous answers.]

I certify that the jury was unanimous in answering the following questions.
All twelve of us agreed to each of the answers. The presiding juror has signed
the certificate for all twelve of us.

[Judge to list questions that require a unanimous answer,
including the predicate liability question.]

Signature of Presiding Juror Printed Name of Presiding Juror

PJC 1.3B Charge of the Court—Six-Member Jury

[Brackets indicate optional or instructive text.]

MEMBERS OF THE JURY:

PJC 1.3 ADMONITORY INSTRUCTIONS

Here are the instructions for answering the questions.

1. Do not let bias, prejudice, or sympathy play any part in your deci-
sion.

2. Base your answers only on the evidence admitted in court and on
the law that is in these instructions and questions. Do not consider or discuss
any evidence that was not admitted in the courtroom.

4. Ifmy instructions use a word in a way that is different from its ordi-
nary meaning, use the meaning I give you, which will be a proper legal defi-
nition.

5. All the questions and answers are important. No one should say that
any question or answer is not important.

6. Answer “yes” or “no” to all questions unless you are told otherwise.
y
A “yes” answer must be based on a preponderance of the evidence [unless

ADMONITORY INSTRUCTIONS PJC 1.3

you are told otherwise]. Whenever a question requires an answer other than
“yes” or “no,” your answer must be based on a preponderance of the evi-
dence [unless you are told otherwise].

8. Do not answer questions by drawing straws or by any method of
chance.

9. Some questions might ask you for a dollar amount. Do not agree in
advance to decide on a dollar amount by adding up each juror's amount and
then figuring the average.

10. Do not trade your answers. For example, do not say, “I will answer
this question your way if you answer another question my way."

11. [Unless otherwise instructed] The answers to the questions must be
based on the decision of at least five of the six jurors. The same five jurors
must agree on every answer. Do not agree to be bound by a vote of anything
less than five jurors, even if it would be a majority.

Definitions, questions, and special instructions
q j^
given to the jury will be transcribed here.]

PJC 1.3 ADMONITORY INSTRUCTIONS

Presiding Juror:

1. When you go into the jury room to answer the questions, the first
thing you will need to do is choose a presiding juror.

2. The presiding juror has these duties:

a. have the complete charge read aloud if it will be helpful to
your deliberations;

b. preside over your deliberations, meaning manage the discus-
sions, and see that you follow these instructions;

c. give written questions or comments to the bailiff who will give
them to the judge;

d. write down the answers you agree on;
e. get the signatures for the verdict certificate; and
f. notify the bailiff that you have reached a verdict.

Do you understand the duties of the presiding juror? If you do not, please tell

me now.

Instructions for Signing the Verdict Certificate:

1. [Unless otherwise instructed] You may answer the questions on a
vote of five jurors. The same five jurors must agree on every answer in the
charge. This means you may not have one group of five jurors agree on one
answer and a different group of five jurors agree on another answer.

2. If five jurors agree on every answer, those five jurors sign the ver-
dict.

If all six of you agree on every answer, you are unanimous and only the
presiding juror signs the verdict.

3. All jurors should deliberate on every question. You may end up
with all six of you agreeing on some answers, while only five of you agree
on other answers. But when you sign the verdict, only those five who agree
on every answer will sign the verdict.

4. [Added if the charge requires some unanimity.] There are some spe-
cial instructions before Questions explaining how to answer those
questions. Please follow the instructions. If all six of you answer those ques-
tions, you will need to complete a second verdict certificate for those ques-
tions.

ADMONITORY INSTRUCTIONS PJC 1.3

Do you understand these instructions? If you do not, please tell me now.

JUDGE PRESIDING
Verdict Certificate

Check one:

Our verdict is unanimous. All six of us have agreed to each and every
answer. The presiding juror has signed the certificate for all six of us.

Signature of Presiding Juror Printed Name of Presiding Juror

Our verdict is not unanimous. Five of us have agreed to each and every
answer and have signed the certificate below.

Signature Name Printed

(Jy: pe cc Ole bs ems

If you have answered Question No. [the exemplary damages
amount], then you must sign this certificate also.

Additional Certificate
[Used when some questions require unanimous answers.]

I certify that the jury was unanimous in answering the following questions.
All six of us agreed to each of the answers. The presiding juror has signed the
certificate for all six of us.

PJC 1.3 ADMONITORY INSTRUCTIONS

[Judge to list questions that require a unanimous answer,
including the predicate liability question.]

Signature of Presiding Juror Printed Name of Presiding Juror

COMMENT

When to use. The above charge of the court includes the written instructions pre-
scribed in Tex. R. Civ. P. 226a. Before closing arguments begin, the court must provide
each member of the jury a copy of the charge, including the written instructions, “with
such modifications as the circumstances of the particular case may require."

Modification of additional certificate. The additional certificate set forth in Tex.
R. Civ. P. 226a lists the questions that require unanimous answers for an award of
exemplary damages and requires the presiding juror to sign the certificate only if the
jury answered unanimously to all of the listed questions. This format may require
modification in cases involving multiple claims and/or multiple parties. In such cases,
the jury's answers might be unanimous as to some but not all of the listed questions,
and therefore the presiding juror will be unable to sign the certificate even though an
award of exemplary damages might be appropriate based on the questions to which the
jury answered unanimously. The Committee suggests that the additional certificate be
modified in such multiclaim, multiparty cases. One possible approach is as follows:

Additional Certificate

I certify that the jury was unanimous in answering the following
questions or parts of questions marked “yes” below. All [twelve/six]
of us agreed to each of the answers marked “yes.” The presiding
juror has signed the certificate for all [twelve/six] of us.

Answer “yes” or “no” for each of the following:
Question No. 1
Question No. 2
Defendant 1
Defendant 2
Defendant 3
Question No. 3
Defendant 1

ADMONITORY INSTRUCTIONS

Defendant 2

Defendant 3

PJC 1.3

Signature of Presiding Juror

Printed Name of Presiding Juror

PJC 1.4 ADMONITORY INSTRUCTIONS

PJC 1.4 Additional Instruction for Bifurcated Trial

[Brackets indicate optional, alternative, or instructive text.]

MEMBERS OF THE JURY:

In discharging your responsibility on this jury, you will observe all the
instructions that have been previously given you.

JUDGE PRESIDING

Certificate

I certify that the jury was unanimous in answering the following questions.
All twelve [six] of us agreed to each of the answers. The presiding juror has
signed the certificate for all twelve [six] of us.

[Judge to list questions that require a unanimous answer,
including the predicate liability question.]

Signature of Presiding Juror Printed Name of Presiding Juror

COMMENT

When to use. PJC 1.4 should be used as an instruction for the second phase of a
bifurcated trial pursuant to Tex. Civ. Prac. & Rem. Code § 41.009. See also Transpor-
tation Insurance Co. v. Moriel, 879 S.W.2d 10, 29—30 (Tex. 1994). If questions that do
not require unanimity are submitted in the second phase of a trial, use the verdict cer-
tificate in PJC 1.3.

Source of instruction. The foregoing instructions are prescribed in Tex. R. Civ. P.
226a.

Actions filed before September 1, 2003. For actions filed before September 1,
2003, a unanimous verdict was not required. See the 2018 edition of this volume for
the appropriate submission.

Modification of additional certificate. The additional certificate set forth in Tex.
R. Civ. P. 226a lists the questions that require unanimous answers for an award of

ADMONITORY INSTRUCTIONS PJC 1.4

exemplary damages and requires the presiding juror to sign the certificate only if the
jury answered unanimously to all of the listed questions. This format may require
modification in cases involving multiple claims and/or multiple parties. In such cases,
the jury's answers might be unanimous as to some but not all of the listed questions,
and therefore the presiding juror will be unable to sign the certificate even though an
award of exemplary damages might be appropriate based on the questions to which the
jury answered unanimously. The Committee suggests that the additional certificate be
modified in such multiclaim, multiparty cases. One possible approach is as follows:

Additional Certificate

Answer “yes” or “no” for each of the following:
Question No. 1
Question No. 2
Defendant 1
Defendant 2
Defendant 3
Question No. 3
Defendant 1
Defendant 2
Defendant 3

Signature of Presiding Juror

Printed Name of Presiding Juror

PJC 1.5 ADMONITORY INSTRUCTIONS

PJC 1.5 Instructions to Jury after Verdict

Thank you for your verdict.

I have told you that the only time you may discuss the case is with the other
jurors in the jury room. I now release you from jury duty. Now you may discuss
the case with anyone. But you may also choose not to discuss the case; that is
your right.

After you are released from jury duty, the lawyers and others may ask you
questions to see if the jury followed the instructions, and they may ask you to
give a sworn statement. You are free to discuss the case with them and to give a
sworn statement. But you may choose not to discuss the case and not to give a
sworn statement; that is your right.

COMMENT

When to use. The foregoing instructions are prescribed in Tex. R. Civ. P. 226a.
The instructions are to be given orally to the jury “after the verdict has been accepted
by the court and before the jurors are released from jury duty."

ADMONITORY INSTRUCTIONS PJC 1.6

PJC 1.6 Instruction to Jury If Permitted to Separate

You are again instructed that it is your duty not to communicate with, or per-
mit yourselves to be addressed by, any other person about any subject relating
to the case.

COMMENT

When to use. The foregoing instruction is required by Tex. R. Civ. P. 284 “[i]f
jurors are permitted to separate before they are released from jury duty, either during
the trial or after the case is submitted to them.”

PJC 1.7 ADMONITORY INSTRUCTIONS

PJC 1.7 Instruction If Jury Disagrees about Testimony

[Brackets indicate instructive text.]

MEMBERS OF THE JURY:

You have made the following request in writing:
[Insert copy of request.]

Your request is governed by the following rule:

“Tf the jury disagree as to the statement of any witness, they may,
upon applying to the court, have read to them from the court
reporter's notes that part of such witness' testimony on the point in
dispute ...."

If you report that you disagree concerning the statement of a witness and
specify the point on which you disagree, the court reporter will search his notes
and read to you the testimony of the witness on the point.

JUDGE PRESIDING

COMMENT

When to use. This written instruction is based on Tex. R. Civ. P. 287 and is to be
used if the jurors request that testimony from the court reporter's notes be read to
them.

ADMONITORY INSTRUCTIONS PJC 1.8

PJC 1.8 Circumstantial Evidence (Optional)

A fact may be established by direct evidence or by circumstantial evidence
or both. A fact is established by direct evidence when proved by documentary
evidence or by witnesses who saw the act done or heard the words spoken. A
fact is established by circumstantial evidence when it may be fairly and reason-
ably inferred from other facts proved.

COMMENT

When to use. PJC 1.8 may be used when there is circumstantial evidence in the
case. It would be placed in the charge of the court (PJC 1.3) after the instruction on
preponderance of the evidence and immediately before the definitions, questions, and
special instructions. For cases defining circumstantial evidence, see Blount v. Bordens,
Inc., 910 S.W.2d 931, 933 (Tex. 1995) (per curiam), and Russell v. Russell, 865 S.W.2d
929, 933 (Tex. 1993). It is not error to give or to refuse an instruction on circumstantial
evidence. Larson v. Ellison, 217 S.W.2d 420 (Tex. 1949); Johnson v. Zurich General
Accident & Liability Insurance Co., 205 S.W.2d 353 (Tex. 1947); Adams v. Valley
Federal Credit Union, 848 S.W.2d 182, 188 (Tex. App.—Corpus Christi-Edinburg
1992, writ denied).

PJC 1.9 ADMONITORY INSTRUCTIONS

PJC 1.9 Instructions to Deadlocked Jury

I have your note that you are deadlocked. In the interest of justice, if you
could end this litigation by your verdict, you should do so.

I do not mean to say that any individual juror should yield his or her own
conscience and positive conviction, but I do mean that when you are in the jury
room, you should discuss this matter carefully, listen to each other, and try, if
you can, to reach a conclusion on the questions. It is your duty as a juror to
keep your mind open and free to every reasonable argument that may be pre-
sented by your fellow jurors so that this jury may arrive at a verdict that justly
answers the consciences of the individuals making up this jury. You should not
have any pride of opinion and should avoid hastily forming or expressing an
opinion. At the same time, you should not surrender any conscientious views
founded on the evidence unless convinced of your error by your fellow jurors.

If you fail to reach a verdict, this case may have to be tried before another
jury. Then all of our time will have been wasted.

Accordingly, I return you to your deliberations.

COMMENT

Source. The foregoing instructions are modeled on the charge in Stevens v. Trav-
elers Insurance Co., 563 S.W.2d 223 (Tex. 1978), and on Tex. R. Civ. P. 226a.

For use in civil trials only. The above charge is recommended for use in civil
cases. For a sample instruction for use in criminal cases, see the current edition of
State Bar of Texas, Texas Criminal Pattern Jury Charges—General, Evidentiary &
Ancillary Instructions CPJC 10.1 (Instruction—A/len Charge).

ADMONITORY INSTRUCTIONS PJC 1.10

PJC 1.10 Privilege—Generally No Inference

[Brackets indicate instructive text.]

You are instructed that you must not infer anything by [name of invoking
party|'s refusal to answer questions because of [name of invoking party]’s
claim of [privilege asserted] privilege.

COMMENT

When to use. This instruction should be used in situations other than a claim of
Fifth Amendment privilege. See PJC 1.11. On request by any party against whom the
jury might draw any inference from a claim of privilege, the court must instruct the
jury that no inference may be drawn therefrom. Tex. R. Evid. 513(d).

PJC 1.11 ADMONITORY INSTRUCTIONS

PJC 1.11 Fifth Amendment Privilege—Adverse Inference May Be
Considered

[Brackets indicate instructive text.]

[Name of invoking party] refused to answer certain questions on the grounds
that it may tend to incriminate him. A person has a constitutional right to
decline to answer on the grounds that it may tend to incriminate him. You may,
but are not required to, infer by such refusal that the answers would have been
adverse to [name of invoking party] s interests.

COMMENT

When to use. On request by any party after another party has invoked his Fifth
Amendment privilege against self-incrimination in the present case, the above instruc-
tion may be given at the court's discretion, as controlling authorities neither require
nor prohibit its inclusion in the written charge of the court. See Baxter v. Palmigiano,
425 U.S. 308, 318 (1976); Wilz v. Flournoy, 228 S.W.3d 674, 677 (Tex. 2007); Texas
Department of Public Safety Officers Ass’n v. Denton, 897 S.W.2d 757, 763 (Tex.
1995).

Nonparty witness. The Committee expresses no opinion as to the propriety of
such an instruction when a nonparty witness asserts a privilege.

ADMONITORY INSTRUCTIONS PJC 1.12

PJC 1.12 Parallel Theories on Damages

In answering questions about damages, answer each question separately. Do
not increase or reduce the amount in one answer because of your answer to any
other question about damages. Do not speculate about what any party's ulti-
mate recovery may or may not be. Any recovery will be determined by the
court when it applies the law to your answers at the time of judgment.

COMMENT

When to use. If several theories of recovery are submitted in the charge and any
theory has a different legal measure of damages to be applied to a factually similar
claim for damages, the Committee recommends that a separate damages question for
each theory be submitted and that the above additional instruction be included earlier
in the charge.

PJC 1.13 ADMONITORY INSTRUCTIONS

PJC 1.13 Instruction on Spoliation

[Brackets indicate optional, alternative, or instructive text.]

[Name of spoliating party] [destroyed/failed to preserve/destroyed or failed
to preserve] [describe evidence]. You [must/may] consider that this evidence
would have been unfavorable to [name of spoliating party] on the issue of
[describe issue(s) to which evidence would have been relevant].

COMMENT

When to use. The above instruction is recommended for the adverse inference
resulting from spoliation. In Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex.
2014), the Texas Supreme Court clarified the standards governing spoliation and the
parameters of a trial court's discretion to impose spoliation remedies based on the
facts of the case. After the trial court has determined that a party has spoliated evi-
dence, it has broad discretion to impose a remedy that is proportionate to the conduct,
including, under appropriate circumstances, a spoliation instruction to the jury. Brook-
shire Bros., 438 S.W.3d at 23-26. A spoliation instruction is a severe sanction the
court may use to remedy an act of intentional spoliation that prejudices the nonspoliat-
ing party. Brookshire Bros., 438 S.W.3d at 23. To find intentional spoliation, the spoli-
ator must have “acted with the subjective purpose of concealing or destroying
discoverable evidence." Brookshire Bros., 438 S.W.3d at 24. To submit a spoliation
instruction the trial court must find that “(1) the spoliating party acted with intent to
conceal discoverable evidence, or (2) the spoliating party acted negligently and caused
the nonspoliating party to be irreparably deprived of any meaningful ability to present
a claim or defense." Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 921 (Tex. 2015).
Moreover, the court must find that a less severe remedy would be insufficient to
reduce the prejudice caused by the spoliation. Brookshire Bros., 438 S.W.3d at 25.

On rare occasions the negligent breach of the duty to reasonably preserve evidence
may support the submission of a spoliation instruction. Where the spoliation “so preju-
dices the nonspoliating party that it is irreparably deprived of having any meaningful
ability to present a claim or defense," the court has discretion to remedy the extreme
prejudice by submitting a spoliation instruction. Brookshire Bros., 438 S.W.3d at 26.

Caveat. Because the imposition of a spoliation instruction is considered
extremely severe, it should be used cautiously, as the wrongful submission of an
instruction may result in a reversal of the case. Brookshire Bros., 438 S.W.3d at 17
(citing Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex. 2003) (“[I]f a spo-
liation instruction should not have been given, the likelihood of harm from the errone-
ous instruction is substantial, particularly when the case is closely contested.")).

ADMONITORY INSTRUCTIONS PJC 1.13

Required findings by the court. Whether a spoliation instruction is appropriate
Is a question of law for the court. Brookshire Bros., 438 S.W.3d at 20 (citing Trevino v.
Ortega, 969 S.W.2d 950, 954—55, 960 (Tex. 1998) (Baker, J., concurring)). Before
considering whether to instruct the jury on spoliation as a remedy for the loss, alter-
ation, or unavailability of certain evidence, a court must consider—

1. whether there was a duty to preserve the evidence at issue,
2. whether the alleged spoliator breached that duty, and
3. prejudice.
Brookshire Bros., 438 S.W.3d at 20.
In evaluating prejudice the court must analyze—
1. relevance of the spoliated evidence to key issues in the case;

2. the harmful effect of the evidence on the spoliating party's case (or con-
versely, whether the evidence would be helpful to the nonspoliating party's case);
and

3. whether the spoliated evidence was cumulative.

Brookshire Bros., 438 S.W.3d at 20; see also Petroleum Solutions, Inc. v. Head, 454
S.W.3d 482 (Tex. 2014). Because the imposition of a spoliation instruction is such a
severe sanction, courts must first determine whether a direct relationship exists
between the conduct, the offender, and the sanction imposed, and the sanction must
not be more severe than necessary. Petroleum Solutions, Inc., 454 S.W.3d at 489 (cit-
ing TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991)).

Use of “may” or “must.” In Brookshire Bros., the majority does not articulate
the specific language that should be included in the instruction, particularly whether
the jury “may” or “must” consider that the missing evidence would have been unfa-
vorable to the spoliator. The dissent in Brookshire Bros. interpreted the majority as
requiring the use of the term must. Brookshire Bros., 438 S.W.3d at 34 (Guzman, J.,
dissenting). The overarching guideline, as with any sanction, remains proportionality.
“Upon a finding of spoliation, the trial court has broad discretion to impose a remedy
that, as with any discovery sanction, must be proportionate; that is, it must relate
directly to the conduct giving rise to the sanction and may not be excessive." Brook-
shire Bros., 438 S.W.3d at 14. Whether may or must is used should be based on the
facts applied to the standards articulated above.

CHAPTER 2

PIC 2.1

PIC A2

PJC 2.3

PJC 2.4

BASIC DEFINITIONS IN NEGLIGENCE ACTIONS

Negligence and Ordinary Care .............0 20.00 e eee eee 35
High Degree of Care 2.0... ccc eens 36
Child's Degree of Care .... 00... ccc ccc cece 37
Proximate Cause «s pie bab EPA E REPREREEE RE SLES ER RE RE 39

BASIC DEFINITIONS IN NEGLIGENCE ACTIONS PJC 2.1

PJC 2.1 Negligence and Ordinary Care

“Negligence” means failure to use ordinary care, that is, failing to do that
which a person of ordinary prudence would have done under the same or simi-
lar circumstances or doing that which a person of ordinary prudence would not
have done under the same or similar circumstances.

“Ordinary care” means that degree of care that would be used by a person of
ordinary prudence under the same or similar circumstances.

COMMENT

When to use. These definitions should be included in the court's charge in every
case in which ordinary negligence is the standard of care. They include the standard
and accepted elements of negligence. See, e.g., Colvin v. Red Steel Co., 682 S.W.2d
243, 245 (Tex. 1984); Great Atlantic & Pacific Tea Co. v. Evans, 175 S.W.2d 249,
250—51 (Tex. 1943).

Modify if “ordinary care" not applicable to all. If “ordinary care" is not the
standard applicable to all persons whose conduct is inquired about (as in cases involv-
ing a high degree of care owed by a common carrier to its passengers, cases involving
the conduct of a child, or certain negligent entrustment cases), the phrase “when used
with respect to the conduct of [insert name of person held to standard of ordinary
care|" should be added after the first word, “negligence,” in the instruction.

When to use PJC 2.2 or 2.3. PJC 22 or 2.3 should be used in addition to PJC 2.1
in cases in which both “ordinary care" and either “high degree of care" or "child's
degree of care” are to be considered by the jury. See above paragraph. If only “high
degree” or "child's degree" is to be considered, PJC 2.2 or 2.3 should be used in lieu of
PJC 2.1.

PJC 2.2 BASIC DEFINITIONS IN NEGLIGENCE ACTIONS

PJC 2.2 High Degree of Care

“Negligence,” when used with respect to the conduct of ABC Company,
means failure to use a high degree of care, that is, failing to do that which a
very cautious, competent, and prudent person would have done under the same
or similar circumstances or doing that which a very cautious, competent, and
prudent person would not have done under the same or similar circumstances.

“High degree of care" means that degree of care that would have been used
by a very cautious, competent, and prudent person under the same or similar
circumstances.

COMMENT

When to use. A high degree of care is called for in cases involving the duty of a
common carrier to its passengers. See Dallas Railway & Terminal v. Travis, 78 S.W.2d
941, 942 (Tex. 1935) (streetcar); Delta Airlines v. Gibson, 550 S.W.2d 310, 312 (Tex.
App.—El Paso 1977, writ ref'd n.r.e.) (airline, regarding use of escalator and boarding
and unloading); Skyline Cab Co. v. Bradley, 325 S.W.2d 176 (Tex. App.—Houston
1959, writ ref d n.r.e.) (taxi); see also Robert R. Walker, Inc. v. Burgdorf, 244 S.W.2d
506 (Tex. 1951) (handlers of dangerous commodities have duty to protect public that
is commensurate with dangers involved).

When to use in addition to or in lieu of PJC 2.1. PJC 2.2 should be used in
addition to PJC 2.1 in cases in which both “ordinary care" and “high degree of care”
are to be considered by the jury. See PJC 2.1 Comment. If only “high degree of care”
is to be considered, PJC 2.2 should be used in lieu of PJC 2.1.

Modify if only “high degree" submitted. In cases involving only a “high degree
of care,” the phrase “when used with respect to the conduct of ABC Company" should
be omitted. Also in such cases, the phrase a high degree of care should replace the
phrase ordinary care in the definition of “proximate cause" in PJC 2.4 or 3.1.

BASIC DEFINITIONS IN NEGLIGENCE ACTIONS PJC 2.3

PJC 2.3 Child's Degree of Care

“Negligence,” when used with respect to the conduct of a child, means fail-
ing to do that which an ordinarily prudent child of the same age, experience,
intelligence, and capacity would have done under the same or similar circum-
stances or doing that which such a child would not have done under the same or
similar circumstances.

"Ordinary care," when used with respect to the conduct of a child, means
that degree of care that an ordinarily prudent child of the same age, experience,
intelligence, and capacity would have used under the same or similar circum-
stances.

COMMENT

When to use. These definitions should be used if the standard of "child's degree
of care" is submitted to the jury. The conduct of a child “of tender years" is judged by
the standard of a child and not by that of an adult. Dallas Railway & Terminal v. Rog-
ers, 218 S. W.2d 456, 458 (Tex. 1949); see also Nabors Well Services, Ltd. v. Romero,
456 S.W.3d 553, 564 (Tex. 2015) (minor held to degree of care that would be exer-
cised by an "ordinarily prudent child of [the same] age, intelligence, experience and
capacity . . . under the same or similar circumstances") (quoting Rudes v. Gottschalk,
324 S.W.2d 201, 204 (Tex. 1959)). For the appropriate age when a child is considered
to be of such immaturity that the above definitions should be submitted, see Rogers,
218 S.W.2d 456; City of Austin v. Hoffman, 379 S.W.2d 103, 107 (Tex. App.—Austin
1964, no writ).

Modify “proximate cause" definition if only “child’s degree" submitted. If the
only standard of care submitted is “child’s degree,” the phrase a child’s degree of care
should replace the phrase ordinary care in the definition of “proximate cause” in PJC
2.4 or 3.1. See Rudes, 324 S.W.2d at 207; MacConnell v. Hill, 569 S.W.2d 524, 528
(Tex. App.—Corpus Christi-Edinburg 1978, no writ); see also Thompson v. Wooten,
650 S.W.2d 499, 500 (Tex. App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.).

Additional instruction in comparative question if negligence of child and adult
apportioned. In MacConnell, 569 S.W.2d at 528, the court recommended the fol-
lowing instruction in comparative negligence cases if the jury must apportion negli-
gence between a child and an adult:

In answering this question, you should take into consideration that
Don Davis was an adult and Paul Payne, Jr. was a child.

If given, this instruction should be placed immediately after the proportionate respon-
sibility question in PJC 4.3.

PJC 2.3 BASIC DEFINITIONS IN NEGLIGENCE ACTIONS

Age when too young to be capable of negligence. For a discussion of the age
beneath which a child is considered too young to be capable of negligence, see Yarbor-
ough v. Berner, 467 S.W.2d 188, 190 (Tex. 1971). See also Nabors Well Services, Ltd.
v. Romero, 508 S.W.3d 512, 535 n.15 (Tex. App.—El Paso 2016, pet. denied).

BASIC DEFINITIONS IN NEGLIGENCE ACTIONS PJC 2.4

PJC 2.4 Proximate Cause

“Proximate cause” means a cause that was a substantial factor in bringing
about an [injury] [occurrence], and without which cause such [injury] [occur-
rence| would not have occurred. In order to be a proximate cause, the act or
omission complained of must be such that a person using ordinary care would
have foreseen that the [injury] [occurrence], or some similar [injury] [occur-
rence], might reasonably result therefrom. There may be more than one proxi-
mate cause of an [injury] [occurrence].

COMMENT

Source of instruction. This definition of proximate cause is based on language
from Transcontinental Insurance Co. v. Crump:

[W]e first examine the causation standards for proximate cause and produc-
ing cause. “The two elements of proximate cause are cause in fact (or sub-
stantial factor) and foreseeability. . . . Cause in fact is established when the
act or omission was a substantial factor in bringing about the injuries, and
without it, the harm would not have occurred." IHS Cedars Treatment Ctr.
v. Mason, 143 S.W.3d 794, 798—99 (Tex. 2004). “The approved definition
of ‘proximate cause’ in negligence cases and the approved definition of
*producing cause' in compensation cases are in substance the same, except
that there is added to the definition of proximate cause the element of fore-
seeableness." [Texas Indemnity Insurance Co. v. Staggs, 134 S.W.2d 1026,
1028—29 (Tex. 1940).] In other words, the producing cause inquiry is con-
ceptually identical to that of cause in fact.

Transcontinental Insurance Co. v. Crump, 330 S.W.3d 211, 221-23 (Tex. 2010). See
also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007).

The Crump and Ledesma opinions address the definitions of "producing cause" and
“cause in fact.” As of the publication date of this edition, there is no decision that
expressly overrules the traditional definition of “proximate cause" below:

“Proximate cause" means that cause which, in a natural and continuous
sequence, produces an event, and without which cause such event would
not have occurred. In order to be a proximate cause, the act or omission
complained of must be such that a person using ordinary care would have
foreseen that the event, or some similar event, might reasonably result
therefrom. There may be more than one proximate cause of an event.

PJC 2.4 BASIC DEFINITIONS IN NEGLIGENCE ACTIONS

Former PJC 2.4. This definition was based on the definition approved by the court in
Rudes v. Gottschalk, 324 S.W.2d 201, 207 (Tex. 1959), and has been cited in many
cases.

When to use. A definition of “proximate cause” should be used in every negli-
gence case in which the cause of action requires that the negligence be a proximate
cause of the occurrence. For discussion of the element of “foreseeability,” see Motsen-
bocker v. Wyatt, 369 S.W.2d 319, 323 (Tex. 1963); Carey v. Pure Distributing Corp.,
124 S.W.2d 847, 849 (Tex. 1939).

Modify if “ordinary care” not applicable to all. If “ordinary care" is not the
standard applicable to all whose conduct is inquired about, the phrase the degree of
care required of him should replace the phrase ordinary care in the second sentence of
this definition of “proximate cause." See Rudes, 324 S.W.2d at 206—07.

Substitute PJC 3.1 if evidence of “new and independent cause." If there is evi-
dence of a “new and independent cause,” the definitions in PJC 3.1 rather than PJC 2.4
should be submitted.

CHAPTER 3 INFERENTIAL REBUTTAL INSTRUCTIONS

PJC 3.1 New and Independent Cause... 1.0.0.0... 0.0 cee eee eee 43

PIC 3.2 Sole Proximate Cause .......... 00... cee cece eese. 45

PJC 3.3 Emetgency ws. esses cs cd ces oh ed eas Oh od Eee nee reden 47

PJC 3.4 Unavoidable Accident... 48

PIC 3,5 Act Of God edes sese i RP tr e eh ee ened 49
Note

This chapter contains the inferential rebuttal instructions to submit if raised by the
evidence. A number of traditional defensive or rebuttal theories once submitted as spe-
cial issues are now subsumed under the comparative negligence question and are no
longer submitted to the jury. These include “assumption of risk,” Farley v. MM Cattle
Co., 529 S. W.2d 751, 758 (Tex. 1975), abrogated by Parker v. Highland Park, Inc.,
565 S.W.2d 512, 517 (Tex. 1978); “imminent peril” (Comm. on Pattern Jury Charges,
1 State Bar of Tex., Texas Pattern Jury Charges PJC 3.08 (1969)); Davila v. Sanders,
557 S.W.2d 770, 771 (Tex. 1977); “last clear chance" or “discovered peril” (PJC 3.06
(1969)); French v. Grigsby, 571 S.W.2d 867 (Tex. 1978); and “no duty" and “open and
obvious” in premises cases, Parker, 565 S.W.2d at 520-21; Massman-Johnson v. Gun-
dolf, 484 S.W.2d 555, 556—57 (Tex. 1972). These theories should not be submitted by
either question or instruction. The Committee also believes that the traditional doctrine
of “rescue” (PJC 3.09 (1969)) is akin to “imminent peril” and is subsumed under com-
parative negligence. The Texas Supreme Court has also cautioned that "giving multi-
ple instructions on every possible rebuttal inference has the potential to skew the jury's
analysis." Dillard v. Texas Electric Cooperative, 157 S.W.3d 429, 433 (Tex. 2005).

INFERENTIAL REBUTTAL INSTRUCTIONS PJC 3.1

PJC 3.1 New and Independent Cause

“Proximate cause" means a cause, unbroken by any new and independent
cause, that was a substantial factor in bringing about an [injury] [occurrence],
and without which cause such [injury] [occurrence] would not have occurred.
In order to be a proximate cause, the act or omission complained of must be
such that a person using ordinary care would have foreseen that the [injury]
[occurrence], or some similar [injury] [occurrence], might reasonably result
therefrom. There may be more than one proximate cause of an [injury] [occur-
rence].

“New and independent cause" means the act or omission of a separate and
independent agency, not reasonably foreseeable, that destroys the causal con-
nection, if any, between the act or omission inquired about and the [injury]
[occurrence] in question and thereby becomes the immediate cause of such
[injury] [occurrence].

COMMENT

When to use—given in lieu of PJC 2.4. PJC 3.1 should be used in lieu of the
usual definition of “proximate cause" (see PJC 2.4) if there is evidence that the occur-
rence was caused by a new and independent cause. See Tarry Warehouse & Storage
Co. v. Duvall, 115 S.W.2d 401, 405 (Tex. 1938); Phoenix Refining Co. v. Tips, 81
S.W.2d 60, 61 (Tex. 1935). Submission if there is no such evidence is improper and
may be reversible error. Galvan v. Fedder, 678 S.W.2d 596, 598—99 (Tex. App.—
Houston [14th Dist.] 1984, no writ); see also James v. Kloos, 75 S.W.3d 153, 162—63
(Tex. App.—Fort Worth 2002, no pet.).

Because a new and independent cause is in the nature of an inferential rebuttal, it
should be submitted by instruction only. Tex. R. Civ. P. 277. For elements to consider
when determining whether a new and independent cause exists, see Columbia Rio
Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 857-59 (Tex. 2009). The “new
and independent cause" instruction is not used when the intervening forces are fore-
seeable and within the scope of risk created by the actor's conduct. Dew v. Crown Der-
rick Erectors, Inc., 208 S.W.3d 448, 450—53 (Tex. 2006).

Modify if “ordinary care" not applicable to all. If “ordinary care" is not the
standard applicable to all whose conduct is inquired about (see PJC 2.2 and 2.3), the
phrase the degree of care required of him should replace the phrase ordinary care in
the second sentence of this definition of “proximate cause." See Rudes v. Gottschalk,
324 S.W.2d 201, 206—07 (Tex. 1959).

PJC 3.1 INFERENTIAL REBUTTAL INSTRUCTIONS

Caveat. The Texas Supreme Court has acknowledged that inferential rebuttals
"serve a legitimate purpose." The court also cautioned, however, that multiple inferen-
tial rebuttal instructions have “the potential to skew the jury’s analysis." Dillard v.
Texas Electric Cooperative, 157 S.W.3d 429, 433 (Tex. 2005).

INFERENTIAL REBUTTAL INSTRUCTIONS PJC 3.2

PJC 3.2 Sole Proximate Cause

There may be more than one proximate cause of an [injury] [occurrence],
but if an act or omission of any person not a party to the suit was the "sole
proximate cause" of an [injury] [occurrence], then no act or omission of any
party could have been a proximate cause.

COMMENT

When to use—given in lieu of last sentence of PJC 2.4. PJC 3.2 should be used
in lieu of the last sentence in the definition of “proximate cause" in PJC 2.4 if there is
evidence that a person's conduct that is not submitted to the jury is the sole proximate
cause of the occurrence. See American Jet, Inc. v. Leyendecker, 683 S.W.2d 121, 126
(Tex. App.—San Antonio 1984, no writ); Herrera v. Balmorhea Feeders, Inc., 539
S.W.2d 84, 86 (Tex. App.—El Paso 1976, writ ref' d n.r.e.). Submission if there is no
such evidence is improper and may be reversible error. See Huerta v. Hotel Dieu Hos-
pital, 636 S.W.2d 208, 211 (Tex. App.—EI Paso), rev'd on other grounds, 639 S.W.2d
462 (Tex. 1982). “Sole proximate cause” is an inferential rebuttal and should be sub-
mitted by instruction. Jackson v. Fontaine’s Clinics, 499 S.W.2d 87, 90-91 (Tex.
1973).

Definition. In Dillard v. Texas Electric Cooperative, 157 S.W.3d 429, 431 (Tex.
2005), the court recognized the following definition of “sole proximate cause”:

There may be more than one proximate cause of an event, but if an act or
omission of any person not a party to the suit was the “sole proximate
cause” of an occurrence, then no act or omission of any other persons could
have been a proximate cause.

Conduct need not be negligence to be sole proximate cause. A person’s con-
duct need not be negligence to be a sole proximate cause. Plemmons v. Gary, 321
S.W.2d 625, 626 (Tex. App.—Beaumont 1959, orig. proceeding); Gulf, Colorado &
Santa Fe Railway v. Jones, 221 S.W.2d 1010, 1014 (Tex. App.—Eastland 1949, writ
ref'd n.re.); Fort Worth & Denver City Railway v. Bozeman, 135 S.W.2d 275, 281
(Tex. App.—Amarillo 1939, writ dism'd judgm't cor.).

Nonsubscribing employer actions. An employer that does not subscribe to the
Texas workers’ compensation insurance program forgoes certain defenses. See Tex.
Lab. Code 8 406.033. However, a nonsubscribing employer is entitled to the defense

PJC 3.2 INFERENTIAL REBUTTAL INSTRUCTIONS

that the actions of its employee were the sole proximate cause of the employee's
injury. Kroger Co. v. Keng, 23 S.W.3d 347, 352 (Tex. 2000) (citing Brookshire Bros. v.
Wagnon, 979 S.W.2d 343, 347 (Tex. App.— Tyler 1998, pet. denied) (submitting
employee's fault improper unless submission is on sole proximate cause)); Najera v.
Great Atlantic & Pacific Tea Co., 207 S.W.2d 365, 367 (Tex. 1948) (in nonsubscriber
case, finding against injured worker on sole proximate cause issue would have pre-
vented recovery). The above language for sole proximate cause, however, does not
properly apply to a nonsubscriber case when there is evidence that the actions of the
employee were the sole proximate cause of the employee's injury. In such cases, the
following instruction should be used:

There may be more than one proximate cause of an [injury]
[occurrence], but if an act or omission of the employee was the “sole
proximate cause" of an [injury] [occurrence], then no act or omission
of any party could have been a proximate cause.

See Hall v. Timmons, 987 S.W.2d 248, 255 (Tex. App.—Beaumont 1999, no pet.)
(nonsubscribing employer may defend on ground that employee was responsible for
some act that was sole proximate cause of her injury).

INFERENTIAL REBUTTAL INSTRUCTIONS PJC 3.3

PJC 3.3 Emergency

If a person is confronted by an “emergency” arising suddenly and unexpect-
edly, which was not proximately caused by any negligence on his part and
which, to a reasonable person, requires immediate action without time for
deliberation, his conduct in such an emergency is not negligence or failure to
use ordinary care if, after such emergency arises, he acts as a person of ordi-
nary prudence would have acted under the same or similar circumstances.

COMMENT

When to use—given immediately after definition of “negligence.” PJC 3.3
should be given immediately after the definition of "negligence" in PJC 2.1 if there is
evidence that a person whose conduct is inquired about was confronted by an emer-
gency. “Emergency” is an inferential rebuttal and should be submitted by instruction.
McDonald Transit, Inc. v. Moore, 565 S.W.2d 43, 44 (Tex. 1978); Yarborough v. Ber-
ner, 467 S.W.2d 188, 193 (Tex. 1971). See also generally Thomas v. Oldham, 895
S.W.2d 352 (Tex. 1995) (evidence insufficient to support submission of *sudden emer-
gency”).

Definition. The above definition of “emergency” was recognized by the Texas

Supreme Court in Dillard v. Texas Electric Cooperative, 157 S.W.3d 429, 432 (Tex.
2005).

Caveat. The Texas Supreme Court has acknowledged that inferential rebuttals
“serve a legitimate purpose.” The court also cautioned, however, that multiple inferen-
tial rebuttal instructions have “the potential to skew the jury's analysis.” Dillard, 157
S.W.3d at 433.

PJC 3.4 INFERENTIAL REBUTTAL INSTRUCTIONS

PJC 3.4 Unavoidable Accident

An occurrence may be an “unavoidable accident,” that is, an event not prox-
imately caused by the negligence of any party to the occurrence.

COMMENT

When to use—given immediately after definition of “proximate cause.” PJC
3.4 should be given immediately after the definition of “proximate cause” in PJC 2.4 if
there is evidence that the occurrence was caused by unforeseeable nonhuman condi-
tions. *Unavoidable accident" is an inferential rebuttal and should be submitted by
instruction. Yarborough v. Berner, 467 S.W.2d 188, 192 (Tex. 1971).

Definition. The above definition of “unavoidable accident” was recognized by
the Texas Supreme Court in Dillard v. Texas Electric Cooperative, 157 S.W.3d 429,
432 (Tex. 2005). See also Gunn v. McCoy, 554 S.W.3d 645, 675 (Tex. 2018) (instruc-
tion proper “only when there is evidence that the event was proximately caused by a
nonhuman condition and not by the negligence of any party to the event") (citing Hill
v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 803 (Tex. 1992)); Yarborough, 467 S.W.2d
at 191 (darting out by child too young to be negligent was in nature of physical condi-
tion or circumstance" constituting unavoidable accident).

Caveat. The Texas Supreme Court has acknowledged that inferential rebuttals
"serve a legitimate purpose." The court also cautioned, however, that multiple inferen-
tial rebuttal instructions have "the potential to skew the jury's analysis." Dillard, 157
S.W.3d at 433.

INFERENTIAL REBUTTAL INSTRUCTIONS PJC 3.5

PJC 3.5 Act of God

If an occurrence is caused solely by an “act of God,” it is not caused by the
negligence of any person. An occurrence is caused by an act of God if it is
caused directly and exclusively by the violence of nature, without human inter-
vention or cause, and could not have been prevented by reasonable foresight or
care.

COMMENT

When to use—given immediately after definition of “proximate cause.” PJC
3.5 should be given immediately after the definition of “proximate cause” in PJC 2.4 if
there is evidence that the occurrence was caused by an act of God. “Act of God" is a
variation of “unavoidable accident." It requires, in addition, that the occurrence be
caused directly and exclusively by the violence of nature. It should be given in lieu of
(and not in addition to) PJC 3.4 when it refers to the same condition. *Act of God" is
an inferential rebuttal and should be submitted by instruction. Scott v. Atchison,
Topeka & Santa Fe Railway, 572 S.W.2d 273, 279 (Tex. 1978).

Definition. PJC 3.5 is based on the definition given by the trial court and
approved in Scott, 572 S.W.2d at 280. See also Dillard v. Texas Electric Cooperative,
157 S.W.3d 429, 433 (Tex. 2005).

CHAPTER 4

PJC 4.1

PJC 4.2

PJC 4.3

PJC 4.4

BASIC NEGLIGENCE QUESTIONS

Broad Form—Joint Submission of Negligence and
Proximate Cause ......... 0... cece eee cece ee

Standards for Recovery of Exemplary Damages .............
Proportionate Responsibility... lesse

Proportionate Responsibility If Contribution Defendant Is
Mon. P X C"—————— ed PRD

BASIC NEGLIGENCE QUESTIONS PJC 4.1

PJC 4.1 Broad Form—Joint Submission of Negligence and
Proximate Cause

QUESTION
Did the negligence, if any, of those named below proximately cause the
[injury] [occurrence] in question?
Answer “Yes” or “No” for each of the following:
1. Don Davis

Paul Payne

Responsible Ray

2
3. Sam Settlor
4
5

Connie Contributor

COMMENT

When to use. PJC 4.1 is a broad-form question that should be appropriate in most
negligence cases.

Broad form to be used when feasible. Rule 277 of the Texas Rules of Civil Pro-
cedure provides that “the court shall, whenever feasible, submit the cause upon broad-
form questions.” Tex. R. Civ. P. 277. See Thota v. Young, 366 S.W.3d 678, 689 (Tex.
2012) (Rule 277’s use of “whenever feasible” mandates broad-form submission “in
any or every instance in which it is capable of being accomplished.").

When broad-form questions not feasible. A broad-form question cannot be
used to put before the jury issues that have no basis in the law or the evidence. Texas
Commission on Human Rights v. Morrison, 381 S.W.3d 533, 537 (Tex. 2012); Romero
v. KPH Consolidation, Inc., 166 S.W.3d 212, 215 (Tex. 2005). Broad-form submission
may not be feasible in a variety of circumstances depending on the law, the theories,
and the evidence in a given case. See, e.g., Romero, 166 S.W.3d at 226-27 (single
broad-form proportionate responsibility question may not be feasible if one theory is
legally invalid or not supported by sufficient evidence); Harris County v. Smith, 96
S.W.3d 230, 234 (Tex. 2002) (broad-form submission of multiple elements of damage
may cause harmful error if one or more of the elements is not supported by sufficient
evidence); Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378, 388-89 (Tex. 2000)
(broad-form submission combining valid and invalid theories of liability was cause of
harmful error). Submission of a single broad-form liability question that erroneously
intermingles both valid and invalid liability theories may, where a timely and specific
objection is made, result in harmful error when “it cannot be determined whether the

PJC 4.1 BASIC NEGLIGENCE QUESTIONS

improperly submitted theories formed the sole basis for the jury's finding." Morrison,
381 S. W.3d at 536 (citing Casteel, 22 S.W.3d at 389). When broad-form submission is
feasible, a harmless error analysis typically applies. See Thota, 366 S.W.3d at 693
(applying harmless error analysis to broad-form question with separate answer blanks
for plaintiff and defendant offered in single-theory-of-liability case).

Accompanying definitions and instructions. The broad-form questions required
by rule 277 contemplate the use of appropriate accompanying instructions “as shall be
proper to enable the jury to render a verdict." Tex. R. Civ. P. 277. Failure to do so may
constitute reversible error. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 838 (Tex.
2002) (“Because the question allowed the jury to find Torrington liable even if the
plaintiffs did not establish the necessary factual predicates for a negligent undertaking
duty, it was erroneous. These essential elements of an undertaking claim should be
included in the instructions accompanying a broad-form negligence question." (inter-
nal citations omitted)). See also chapter 2 in this volume, “Basic Definitions in Negli-
gence Actions."

Substitution of “death.” Under the Texas wrongful death statute, a defendant's
liability may be predicated on “an injury that causes an individual's death.” Tex. Civ.
Prac. & Rem. Code § 71.002(b); see also Kramer v. Lewisville Memorial Hospital,
858 S.W.2d 397, 404 (Tex. 1993). Therefore, in a case involving a claim for wrongful
death, the word death may be substituted for the word injury in the negligence ques-
tion.

Plaintiff's negligence. If the plaintiff's negligence is not in issue, the plaintiff's
name (Paul Payne) should not be included in the above question. In a case in which
the plaintiff's negligence is in issue, or in any case including more than one defendant,
a proportionate responsibility question should follow PJC 4.1. Tex. Civ. Prac. & Rem.
Code §§ 33.001—.017. See PJC 4.3 and 4.4.

Use of “injury” or “occurrence.” “Injury” should ordinarily be used in this
question, as well as in PJC 4.3, particularly if there is evidence of the plaintiff's preoc-
currence negligence that is “injury causing” but not “occurrence causing,” such as the
failure to wear a seat belt. Nabors Well Services, Ltd. v. Romero, 456 S.W.3d 553, 563—
64 (Tex. 2015); see also Tex. Civ. Prac. & Rem. Code § 33.011(4) (defining “percent-
age of responsibility" in terms of “causing or contributing to cause in any way .. . the
personal injury, property damage, death, or other harm for which recovery of damages
is sought") (emphasis added).

However, a plaintiff's preoccurrence, injury-causing conduct is distinct from the
plaintiff's postoccurrence failure to mitigate damages, which is submitted as an exclu-
sionary instruction to the damages questions. See PJC 28.9. See Nabors, 456 S.W.3d at
564.

In cases with no allegations of injury-causing negligence by a plaintiff, or in cases
of injuries to multiple plaintiffs arising out of a single occurrence, it may be appropri-

BASIC NEGLIGENCE QUESTIONS PJC 4.1

ate to use "occurrence" in this question and in PJC 4.3. However, the concerns
expressed in Nabors should be considered carefully.

In a case involving a death, the word “death” may be used instead of “injury.”

Failure to mitigate. If “injury” is used and there is a claim that the plaintiff failed
to mitigate damages after the occurrence, the following additional instruction should
be included:

In answering this question, do not consider Paul Payne's failure, if
any, to exercise ordinary care in caring for or treating Ais injury, if
any.

When not to submit exclusionary instruction. If PJC 4.1 is submitted with the
term injury, the exclusionary instruction in PJC 28.8 should not be submitted.

Settling person. If the case includes a settling person (Sam Settlor), that person's
responsibility should be determined by the trier of fact. Tex. Civ. Prac. & Rem. Code
$8 33.003, 33.011. Thus, the settling person's name must be included in the basic lia-
bility question as well as in the proportionate responsibility question. See PJC 4.3.
Section 33.003(b) provides that a question regarding conduct by any person may not
be submitted to the jury without evidence to support the submission. Tex. Civ. Prac. &
Rem. Code § 33.003(b).

Responsible third parties—causes of action accruing on or after September 1,
1995, and causes of action accruing before September 1, 1995, on which suit is
filed on or after September 1, 1996, and before July 1, 2003. See the 2018 edition
of this volume for the appropriate submission of responsible third parties before July
1, 2003.

Responsible third parties—actions filed on or after July 1, 2003. In 2003 the
legislature changed responsible third party practice from one of joinder to one of des-
ignation. Tex. Civ. Prac. & Rem. Code § 33.004. At least one Texas court has held that
it is “only upon the trial court's granting of a motion for leave to designate a person as
a responsible third party that the designation becomes effective." Valverde v. Biela's
Glass & Aluminum Products, Inc., 293 S.W.3d 751, 754—55 (Tex. App.—San Antonio
2009, pet. denied); see also Ruiz v. Guerra, 293 S.W.3d 706, 714—15 (Tex. App.—San
Antonio 2009, no pet.). The legislature also expanded the category of responsible third
parties. Tex. Civ. Prac. & Rem. Code 88 33.004, 33.011(6). **Responsible third party’
means any person who is alleged to have caused or contributed to causing in any way
the harm for which recovery of damages is sought, whether by negligent act or omis-
sion, by any defective or unreasonably dangerous product, by other conduct or activity
that violates an applicable legal standard, or by any combination of these." Tex. Civ.
Prac. & Rem. Code § 33.011(6). Section 33.003(b) provides that a question regarding
conduct by any person may not be submitted to the jury without evidence to support
the submission. Tex. Civ. Prac. & Rem. Code § 33.003(b).

PJC 4.1 BASIC NEGLIGENCE QUESTIONS

Contribution defendant. If there is a contribution defendant (Connie Contribu-
tor), that person's name should be included in the basic liability question. See Tex. Civ.
Prac. & Rem. Code $8 33.003, 33.011. “Contribution defendant" is defined in Tex.
Civ. Prac. & Rem. Code § 33.016. However, a pure contribution defendant—that is,
one not otherwise joined or designated a responsible third party under the applicable
version of Tex. Civ. Prac. & Rem. Code § 33.004— must not be included in the main
proportionate responsibility question (PJC 4.3), but instead requires a separate ques-
tion comparing the contribution defendant's percentage of responsibility with the
responsibility of the defendant. See PJC 4.4.

Employer immunity under Workers? Compensation Act—actions filed before
July 1, 2003. See the 2018 edition of this volume for the proper treatment of an
employer who is immune from suit under the Workers’ Compensation Act.

Employer immunity under Workers Compensation Act—actions filed on or
after July 1, 2003. Changes in the law of proportionate responsibility and how
"responsible third party" is defined affecting cases filed on or after July 1, 2003, may
require that the negligence of an employer, even one covered by workers' compensa-
tion insurance, be submitted to the jury for its consideration. See Tex. Civ. Prac. &
Rem. Code § 33.011; /n re Unitec Elevator Services Co., 178 S.W.3d 53, 58 n.5 (Tex.
App.—Houston [1st Dist.] 2005, orig. proceeding); see also In re Lewis Casing Crews,
Inc., No. 11-14-00137-CV, 2014 WL 3398170, at *4 n.2 (Tex. App.—Eastland July
10, 2014, orig. proceeding).

Exceptions to the limitations on joint and several liability. The limitations on
joint and several liability set forth in chapter 33 of the Civil Practice and Remedies
Code do not apply in certain instances. See Tex. Civ. Prac. & Rem. Code § 33.013. See
also chapter 72 in the current edition of State Bar of Texas, Texas Pattern Jury
Charges—Malpractice, Premises & Products. For actions filed before July 1, 2003,
see former Tex. Civ. Prac. & Rem. Code $8 33.002, 33.013(c)(1), (c)(2) (Acts 1995,
74th Leg., R.S., ch. 136, § 1 (S.B. 28), eff. Sept. 1, 1995).

Uninsured/Underinsured Motorist (UM/UIM) cases. In UM/UIM cases, an
insured is legally entitled to recover under his UM/UIM policy once he obtains a judg-
ment establishing the liability and underinsured status of the other motorist. See Brain-
ard v. Trinity Universal Insurance Co., 216 S.W.3d 809, 818 (Tex. 2006). In this
manner, UM/UIM coverage is unique because it uses tort law to determine coverage,
and in doing so the questions necessary to establish coverage under the insurance con-
tract will be the same liability and damages questions used in third-party liability
cases. See Brainard, 216 S.W.3d at 818. Note, however, that in presenting these liabil-
ity and damages questions to the jury, the UM/UIM carrier remains the real party in
interest and must be identified to the jury as such. See Perez v. Kleinert, 211 S.W.3d
468 (Tex. App.—Corpus Christi-Edinburg 2006, no pet.) (granting new trial where
insurer's attorney was permitted to conceal and deliberately misrepresent his identity
to the jury as attorney for third-party motorist).

BASIC NEGLIGENCE QUESTIONS PJC 4.2

PJC 4.2 Standards for Recovery of Exemplary Damages

Answer the following question regarding Don Davis only if you unani-
mously answered “Yes” to Question [4.1 or other applicable liability
question] regarding Don Davis. Otherwise, do not answer the following ques-
tion regarding Don Davis.

To answer “Yes” to [any part of] the following question, your answer must
be unanimous. You may answer “No” to [any part of] the following question
only upon a vote of ten or more jurors. Otherwise, you must not answer [that
part of] the following question.

QUESTION
Do you find by clear and convincing evidence that the harm to Paul Payne
resulted from gross negligence?

"Clear and convincing evidence" means the measure or degree of proof that
produces a firm belief or conviction of the truth of the allegations sought to be
established.

"Gross negligence" means an act or omission by Don Davis,

1. which when viewed objectively from the standpoint of Don Davis
at the time of its occurrence involves an extreme degree of risk, considering
the probability and magnitude of the potential harm to others; and

2. of which Don Davis has actual, subjective awareness of the risk
involved, but nevertheless proceeds with conscious indifference to the rights,
safety, or welfare of others.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. See the comments below for the sources of these definitions and
instructions. If only one defendant is a party to the action, it may be unnecessary to
include the any part of language in the conditioning instruction.

Exceptions to the limitation on exemplary damages. See Tex. Civ. Prac. &
Rem. Code 8 41.008(c); Acts 1995, 74th Leg., R.S., ch. 19, 8 1 (S.B. 25), eff. Sept. 1,
1995. Note that the 2003 amendments to the statute added an exception to one of the
exceptions in subsection (7).

PJC 4.2 BASIC NEGLIGENCE QUESTIONS

Actions filed before September 1, 2003. For actions filed before September 1,
2003, see the 2018 edition of this volume for an explanation of the earlier law.

Malice as a ground for exemplary damages. Malice is also a ground for recov-
ery of exemplary damages. Tex. Civ. Prac. & Rem. Code § 41.003(a)(2). As a predi-
cate for recovery of exemplary damages, the following instruction should be given:

“Malice” means a specific intent by Don Davis to cause substan-
tial injury or harm to Paul Payne.

See Tex. Civ. Prac. & Rem. Code $ 41.001(7).

Source of question and instructions. PJC 4.2 is for use in all cases filed on or
afer September 1, 2003. Tex. Civ. Prac. & Rem. Code $8 41.001(7), (11), 41.003(a),
(d), 41.004(a); Tex. R. Civ. P. 226a.

BASIC NEGLIGENCE QUESTIONS PJC 4.3

PJC 4.3 Proportionate Responsibility

If you answered “Yes” to Question[s] [applicable liability ques-
tion(s)| for more than one of those named below, then answer the following
question. Otherwise, do not answer the following question.

Assign percentages of responsibility only to those you found caused or con-
tributed to cause the [injury] [occurrence]. The percentages you find must total
100 percent. The percentages must be expressed in whole numbers. The per-
centage of responsibility attributable to any one is not necessarily measured by
the number of acts or omissions found. The percentage attributable to any one
need not be the same percentage attributed to that one in answering another
question.

QUESTION

For each person you found caused or contributed to cause the [injury]
[occurrence], find the percentage of responsibility attributable to each:

1. Don Davis %
2. Paul Payne %
3. Sam Settlor %
4. Responsible Ray %
Total 100 %
COMMENT

When to use. Rule 277 requires a percentage question “in any cause in which the
jury is required to apportion the loss among the parties.” Tex. R. Civ. P. 277. Thus, PJC
4.3 should be used if the issue of the responsibility of more than one person is submit-
ted to the jury under Tex. Civ. Prac. & Rem. Code §§ 33.001-.017.

Conditioned on responsibility of more than one person. PJC 4.3 is conditioned
on findings that the acts or omissions of more than one person proximately caused the
occurrence, because otherwise no comparison is possible.

Blanks for question numbers. The question number to be inserted in the blank
space in the conditioning instruction should coincide with that of the underlying liabil-
ity question.

Use of “injury” or “occurrence” in PJC 4.1. The term used in the question at
PJC 4.1 (see PJC 4.1 Comment) should also be used in PJC 4.3.

PJC 4.3 BASIC NEGLIGENCE QUESTIONS

Failure to mitigate. If “injury” is used and there is a claim that the plaintiff failed
to mitigate damages after the occurrence, the following additional instruction should
be included:

Do not include any amount in the percentage attributable to Paul
Payne for any further injury resulting from the failure, if any, of Paul
Payne to exercise reasonable care in caring for or treating Ais injury,
if any.

Use of “responsibility” or “negligence.” Chapter 33 of the Civil Practice and
Remedies Code applies not only to negligence but also to any cause of action based on
tort or any action brought under the DTPA. Tex. Civ. Prac. & Rem. Code
§ 33.002(a)(1), (a)(2). For this reason, and because section 33.011 expressly calls for
the comparison of "responsibility," that is the term the Committee suggests. Tex. Civ.
Prac. & Rem. Code § 33.011(4). However, when negligence is the only theory by
which any of the submitted persons could be found liable, an alternative submission
might be as follows:

For each person you found caused or contributed to cause the
[injury] [occurrence], find the percentage of negligence attributable

to each:
1. Don Davis %
2. Paul Payne %
3. Sam Settlor %
4. Responsible Ray %
Total 100 %

Settling person. Upon showing of sufficient evidence to support the submission,
the responsibility of a settling person shall be compared to the responsibility of the
plaintiff and of the defendant. Tex. Civ. Prac. & Rem. Code § 33.003. If there is no set-
tling person (Sam Settlor), then no such submission is required.

Responsible third parties—actions filed on or after July 1, 2003. In 2003 the
legislature changed responsible third party practice from one of joinder to one of des-
ignation. Tex. Civ. Prac. & Rem. Code § 33.004. The legislature also expanded the cat-
egory of responsible third parties. Tex. Civ. Prac. & Rem. Code § 33.004, 33.011(6).
* Responsible third party’ means any person who is alleged to have caused or contrib-

BASIC NEGLIGENCE QUESTIONS PJC 4.3

uted to causing in any way the harm for which recovery of damages is sought, whether
by negligent act or omission, by any defective or unreasonably dangerous product, by
other conduct or activity that violates an applicable legal standard, or by any combina-
tion of these.” Tex. Civ. Prac. & Rem. Code § 33.011(6). Section 33.003(b) provides
that a question regarding conduct by any person may not be submitted to the jury with-
out evidence to support the submission. Tex. Civ. Prac. & Rem. Code § 33.003(b).

Entrustor. See PJC 10.12 comment, “Caveat when both entrustor and entrustee
are joined."

Employer immunity under Workers? Compensation Act—actions filed on or
after July 1, 2003. Changes in the law of proportionate responsibility and how
"responsible third party" is defined affecting cases filed on or after July 1, 2003, may
require that the responsibility of an employer, even one covered by worker's compen-
sation insurance, be submitted to the jury for its consideration. See Tex. Civ. Prac. &
Rem. Code § 33.011; /n re Unitec Elevator Services Co., 178 S.W.3d 53, 58 n.5 (Tex.
App.—Houston [1st Dist.] 2005, orig. proceeding); see also In re Lewis Casing Crews,
Inc., No. 11-14-00137-CV, 2014 WL 3398170, at *4 n.2 (Tex. App.—Eastland July
10, 2014, orig. proceeding).

Second comparative question for contribution defendant. If the case includes
a contribution defendant (see PJC 4.1 comment, *Contribution defendant"), a second
comparative question is necessary. Tex. Civ. Prac. & Rem. Code § 33.016(c). See PJC
4.4. In such a case the following sentence should be added at the end of the instruc-
tional paragraph beginning “Assign percentages . . . ":

If you answered “Yes” as to Connie Contributor in Question[s]
[applicable liability question(s)|, you will be asked to attri-
bute the percentage of responsibility as to Connie Contributor in
Question [proportionate responsibility question].

PJC 4.4 BASIC NEGLIGENCE QUESTIONS

PJC 4.4 Proportionate Responsibility If Contribution Defendant
Is Joined
If you answered “Yes” to Question[s] [applicable liability ques-

tion(s)| for more than one of those named below, then answer the following
question. Otherwise, do not answer the following question.

QUESTION

With respect to causing or contributing to cause in any way the [injury]
[occurrence] to Paul Payne, find the percentage of responsibility, if any, attrib-
utable as between or among—

1. Don Davis %

2. Connie Contributor %

Total 100 %
COMMENT

When to use. PJC 4.4 is an additional comparative question designed to follow
the comparative question in PJC 4.3. It submits the proportionate responsibility
between the defendant and a contribution defendant under Tex. Civ. Prac. & Rem.
Code § 33.016. Section 33.016 specifically requires this second comparative question.
This question should not inquire about the responsibility of the claimant.

If there is more than one defendant. Ifthe question inquires about the responsi-
bility of more than one defendant, separate percentage answers should not be sought
for each defendant in PJC 4.4; rather, the names of all defendants should be grouped
on one answer line.

The ratio of responsibility between or among the defendants is fixed by the answer
to PJC 4.3, in which a separate answer is obtained for each defendant; seeking a sec-
ond set of separate answers in PJC 4.4 might result in jury confusion or conflicting
answers. The contribution responsibility of each defendant is determined by allocating

BASIC NEGLIGENCE QUESTIONS PJC 4.4

the percentage attributed to all defendants in answer to PJC 4.4 in proportion to the rel-
ative percentages found for each defendant in answer to PJC 4.3.

If there is more than one contribution defendant. Ifthe question inquires about
the responsibility of more than one contribution defendant, a separate percentage
answer should be sought for each such contribution defendant.

Blanks for question numbers. The question number to be inserted in the blank
space in the conditioning instruction should coincide with that of the underlying liabil-
Ity question.

Use of “injury” or “occurrence” in PJC 4.1. The term used in the question at
PJC 4.1 (see PJC 4.1 Comment) should also be used in PJC 4.4.

CHAPTER 5
PJC 5.1
PJC 5.2

PJC 5.3

PJC 5.5

PJC 5.6

NEGLIGENCE PER SE
Negligence Per Se and Common-Law Negligence ...........

Negligence Per Se and Common-Law Negligence—Excuse. . . .

Negligence Per Se— Simple Standard—Broad Form. .........
[PJC 5.4 is reserved for expansion.]
Statutory Dramshop Liability ........... 0.20... 0 eee eee eee

Defense to Respondeat Superior Liability under Statutory
Dramshop Act or Common Law............ 000: e eee eee

NEGLIGENCE PER SE PJC 5.1

PJC 5.1 Negligence Per Se and Common-Law Negligence

The law forbids driving the wrong way on a street designated and signposted
as one-way. A failure to comply with this law is negligence in itself.

QUESTION.
Did the negligence, if any, of those named below proximately cause the
occurrence in question?
Answer "Yes" or *No" for each of the following:
1. Don Davis
2. Paul Payne

COMMENT

When to use. PJC 5.1 should be given if there are claims of both common-law
negligence and negligence per se. It includes both an instruction, which should be
placed immediately after the definition of “negligence,” and a broad-form question
jointly submitting negligence and proximate cause.

What constitutes negligence per se. The unexcused violation of a legislative
enactment or administrative regulation adopted by the court as defining the standard of
conduct of a reasonable person is negligence in itself. Perry v. S.N., 973 S.W.2d 301,
304 n.4 (Tex. 1998); Southern Pacific Co. v. Castro, 493 S.W.2d 491, 497 (Tex. 1973)
(citing Restatement (Second) of Torts § 288B (1965)). The unexcused violation of a
statute or ordinance constitutes negligence as a matter of law if such statute or ordi-
nance was designed to prevent injuries to a class of persons to which the injured party
belongs. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985).

Two types of negligence per se standards. A few negligence per se standards
found in statutes or regulations have been held simply to restate the standard of “ordi-
nary care" and not to alter the duty that already exists at common law. See, e.g., Loui-
siana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 675 (Tex. 1998) (article 6701d,
§ 61(a), now Tex. Transp. Code § 545.062(a) (maintaining an assured clear distance
and stopping without colliding)); Franco v. Burtex Constructors, Inc., 586 S.W.2d
590, 593 (Tex. App.— Corpus Christi-Edinburg 1979, writ ref d n.r.e.) (article 6701d,
$8 67, 68(a), now Tex. Transp. Code § 545.402 (starting stopped vehicle), 8 545.103
(turning vehicle)); Booker v. Baker, 306 S.W.2d 767, 774 (Tex. App.—Dallas 1957,
writ ref'd n.re.) (article 6701d, $8 68(a), 72, now Tex. Transp. Code $8 545.103,
545.152 (turning left at intersection)). When a statute, such as these, adds nothing to
the “ordinary care" standard, there is no reason to submit a question on the statutory

PJC 5.1 NEGLIGENCE PER SE

standard or to instruct the jury regarding it because to do so would be redundant. See
Louisiana-Pacific Corp., 976 S.W.2d at 675; Williams v. Price, 308 S.W.2d 185, 188
(Tex. App.—Fort Worth 1957, writ ref'd n.r.e.). In such cases, the negligence per se
standard is subsumed under the broad-form negligence question (PJC 4.1). On the
other hand, when a statute creates a standard different from "ordinary care," it should
be brought to the jury's attention, as provided in PJC 5.1 or, in special situations, as
provided in PJC 5.2 and 5.3.

Usual case involves both common-law negligence and negligence per se.
Frequently a case involving a negligence per se claim also includes a claim of com-
mon-law negligence. In the example in PJC 5.1, one party claims that the other party
drove the wrong way on a one-way street, in violation of Tex. Transp. Code § 545.059
(negligence per se). Each party also claims the other failed to use “ordinary care"
(common-law negligence). In such cases, the Committee recommends the use of an
instruction immediately after the definition of "negligence," informing the jury that
the statutory conduct is negligence in itself, along with a broad-form question jointly
submitting negligence and proximate cause (see PJC 4.1).

Alternative instructions. The instruction accompanying the definition of “negli-
gence" might be worded a variety of ways. Acceptable formulations for its first sen-
tence include—

The violation of a traffic law is negligence in itself, and you are
instructed that the law forbids driving the wrong way on a street des-
ignated and signposted as one-way.

Or—

It is also negligence to drive the wrong way on a street designated
and signposted as one-way.

If uncertain whether violation is negligence per se. It may not be advisable to
use a broad-form submission if there is genuine uncertainty whether the violation con-
stitutes negligence per se. Use of a broad-form question may require a new trial if the
charge incorrectly makes no mention of a statute or regulation, the violation of which
the appellate court finds amounts to negligence per se. Conversely, if the charge
instructs on negligence per se but the appellate court finds (for example) that the party
relying on the statute was not within the class intended to be protected, a new trial
might also be required.

In this situation it would be better to submit both a separate question asking if the
statutory conduct was committed and a broad-form question (as in PJC 4.1) accompa-
nied by an instruction that excludes consideration of the statutory conduct (e.g., “In
your determination of this question, you shall not consider whether Don Davis drove
the wrong way on a street designated and signposted as one-way"). This solution,
however, should be used only when there is genuine and substantial doubt about the

NEGLIGENCE PER SE PJC 5.1

intent of a statute or regulation. A party should not be able to force the use of a sepa-
rate question, rather than a broad-form submission, simply by raising a weak claim
that the violation might be interpreted as either ordinary or per se negligence.

Rephrase if no claim of plaintiff's negligence. If there is no claim that the plain-
tiff was negligent, the question should be—

Did the negligence, if any, of Don Davis proximately cause the
occurrence in question?

Claims of both common-law negligence and violation of driving while intoxi-
cated statute. It is a penal offense to drive or operate a motor vehicle in a public
place while intoxicated. Tex. Penal Code $ 49.04. The definition of "intoxication"
includes—

(A) not having the normal use of mental or physical faculties by rea-
son of the introduction of alcohol, a controlled substance, a drug, a danger-
ous drug, a combination of two or more of those substances, or any other
substance into the body; or

(B) having an alcohol concentration of 0.08 or more.
Tex. Penal Code § 49.01 (emphasis added).

In criminal matters, the statutory definition "effectively abolished the former pre-
sumption of intoxication based on an alcohol concentration of 0.10% or more in a
defendant's body. Intoxication . . . now means the presence of 0.10% or more alcohol
concentration in a defendant's body." Forte v. State, 707 S.W.2d 89, 94 (Tex. Crim.
App. 1986), overruled in part on other grounds by McCambridge v. State, 778 S.W.2d
70 (Tex. Crim. App. 1989). Note that the definition of “intoxication” has since been
changed from 0.10% to 0.08%. Tex. Penal Code § 49.01.

In civil matters, the statutory limitation on use of the presumption of intoxication
has been repealed; thus the 1986 supreme court holding that presumption of intoxica-
tion could not be rendered into negligence per se because of this limitation is no longer
good authority. Pool v. Ford Motor Co., 715 S.W.2d 629, 631 (Tex. 1986); Acts 1995,
74th Leg., R.S., ch. 165, 8 24 (S.B. 971), eff. Sept. 1, 1995.

One court has said that “there is probably no acceptable excuse for driving while
intoxicated" and that, in a "proper case," the trial court could find negligence as a mat-
ter of law and so instruct the jury. Castro v. Hernandez-Davila, 694 S.W.2d 575, 578
(Tex. App.— Corpus Christi-Edinburg 1985, no writ). However, it has long been the
rule that evidence of intoxication alone does not establish negligence but is merely an
evidentiary fact to be considered in determining whether a person is guilty or not of
performing some act or failing to perform some act that an ordinarily prudent person
would have performed. Benoit v. Wilson, 239 S.W.2d 792, 798 (Tex. 1951); see also
JBS Carriers v. Washington, 564 S.W.3d 830, 836—37 (Tex. 2018).

PJC 5.1 NEGLIGENCE PER SE

If driving while intoxicated is negligence per se, the following instruction could be
used in lieu of that in PJC 5.1:

The law forbids driving a motor vehicle in a public place while
intoxicated. The presence of an alcohol concentration in the blood of
0.08 or more is intoxication. Failure to comply with this law is negli-
gence in itself.

If driving while intoxicated is not negligence per se, intoxication may be considered
by the jury as evidence of negligence under the broad-form question in PJC 4.1.

NEGLIGENCE PER SE PJC 5.2

PJC 5.2 Negligence Per Se and Common-Law Negligence—
Excuse

The law forbids driving the wrong way on a street designated and signposted
as one-way. A failure to comply with this law is negligence in itself, unless
excused. A failure to comply is excused if the driver was incapacitated by a
heart attack immediately before the accident.

QUESTION.
Did the negligence, if any, of those named below proximately cause the
occurrence in question?
Answer "Yes" or *No" for each of the following:
1. Don Davis
2. Paul Payne

COMMENT

When to use. PJC 5.2 should be given if there is evidence of a permissible excuse
for violating a negligence per se standard in a case involving claims of both common-
law negligence and negligence per se. Like PJC 5.1, PJC 5.2 includes both an instruc-
tion—to be given immediately after the definition of "negligence"—and a broad-form
question jointly submitting negligence and proximate cause.

Recognized excuses. In /mpson v. Structural Metals, Inc., 487 S.W.2d 694, 696
(Tex. 1972), the court adopted the formulation of the Restatement (Second) of Torts
§ 288A (1965) concerning negligence per se and excuse:

(a) the violation 1s reasonable because of the actor's incapacity;

(b) the actor neither knows nor should know of the occasion for com-
pliance;

(d) the actor is confronted by an emergency not due to his own mis-
conduct;

(e) compliance would involve a greater risk of harm to the actor or
others.

Impson, 487 S.W.2d at 696.

PJC 5.2 NEGLIGENCE PER SE

The above example—driver incapacitated by heart attack— would fall under the
first category. This excuse should, of course, be replaced with the one applicable to the
particular case.

Use of instruction for excuse proper. The use of an instruction following the
definition of “negligence,” informing the jury about negligence per se and excuse
issues, is consistent with Southern Pacific Co. v. Castro, 493 S.W.2d 491, 498 (Tex.
1973) (if there is evidence of permissible excuse, court may give, along with common-
law negligence question, instruction about nature of statutory standard and excuse).

NEGLIGENCE PER SE PJC 5.3

PJC 5.3 Negligence Per Se—Simple Standard—Broad Form

“Negligence” means driving on a street in a direction other than the direc-
tion designated and signposted as one-way.

QUESTION

Did the negligence, if any, of Don Davis proximately cause the occurrence in
question?
Answer “Yes” or “No.”

Answer:

COMMENT

When to use. The unexcused violation of a legislative enactment designed to pre-
vent injury to the class of persons to which the injured party belongs constitutes negli-
gence per se, also known as negligence as a matter of law. See Murray v. O&A
Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982); Missouri Pacific Railroad v. Ameri-
can Statesman, 552 S.W.2d 99, 102 (Tex. 1977). PJC 5.3 should be given if the negli-
gence per se standard can be stated simply and there is no claim of common-law
negligence. In that case, negligence can simply be defined in the factual terms of the
negligence per se standard, because the violation of that standard is the only question
the jury will have to determine as to negligence. Thus, the first part of PJC 5.3, which
consists of the above instruction on negligence, should be given in lieu of the usual
definition of “negligence” if the case involves only negligence per se. If the case also
involves a claim of common-law negligence, the statutory definition should be given
immediately after the usual definition. Also in that case, the word “means” in the defi-
nition should be replaced with “also means.”

If different negligence per se claims are made by each party against the other,
broad-form submission accompanied by an instruction may still be used. The defini-
tion may need to combine the two standards.

[PJC 5.4 is reserved for expansion. ]

PJC 5.5 NEGLIGENCE PER SE

PJC 5.5 Statutory Dramshop Liability

“Negligence” as to Pete Provider means providing, under authority of a
license, an alcoholic beverage to a recipient when it is apparent to the provider
that the recipient is obviously intoxicated to the extent that he presents a clear
danger to himself and others.

You are instructed that the negligence, if any, of Pete Provider was a proxi-
mate cause of the occurrence in question if the recipient's intoxication was a
proximate cause of the occurrence in question.

QUESTION.
Did the negligence, if any, of those named below proximately cause the
occurrence in question?
Answer “Yes” or “No” for each of the following:
l. Don Davis
2. Pete Provider
3. Paul Payne

COMMENT

When to use. PJC 5.5 should be given if a dramshop case is brought under Tex.
Alco. Bev. Code 8 2.02(b). Section 2.02(b) legislates an exclusive liability scheme for
providing alcoholic beverages to persons eighteen years of age or older. Tex. Alco.
Bev. Code § 2.03. See Southland Corp. v. Lewis, 940 S.W.2d 83, 84 (Tex. 1997) (com-
mon-law negligence and negligence per se claims barred by Act's exclusive remedy
provision). PJC 5.5 covers this exclusive basis for provider liability by including a
definition and an instruction on section 2.02(b) elements, together with a broad-form
question embracing both provider conduct and the common-law conduct of others.
The broad-form negligence question is used because the supreme court characterized
the statutory cause of action as grounded on negligence principles in Smith v. Sewell,
858 S.W.2d 350, 356 (Tex. 1993). A different standard may apply if an adult provides
alcoholic beverages to a person under eighteen years of age. Tex. Alco. Bev. Code
§ 2.02(c).

Proximate cause as to Pete Provider. The provisions of section 2.02(b) impose
liability on a provider if (1) at the time the provider sold or served the alcohol it was
apparent to the provider that the recipient was obviously intoxicated to the extent that
he presented a clear danger to himself and others and (2) the intoxication of that indi-

NEGLIGENCE PER SE PJC 5.5

vidual proximately caused the damages suffered. Lewis, 940 S.W.2d at 84—85; Smith,
858 S.W.2d at 355.

Because section 2.02(b) requires a proximate cause connection between the recipi-
ent's intoxication and the damages, an instruction is needed to ensure determination of
that issue. See Borneman v. Steak & Ale, Inc., 22 S.W.3d 411, 412-13 (Tex. 2000) (per
curiam). Without such an instruction, common-law negligence and proximate cause
findings against the recipient would not necessarily determine that the recipient's
intoxication was a proximate cause of the damages.

Moreover, the only causation element expressed in section 2.02(b) regarding the
provider is the proximate cause link between the recipients intoxication and the dam-
ages. Thus, there appears to be no necessity for a finding that the provider's conduct
was a proximate cause as defined by common law. But see Smith, 858 S.W.2d at 356:
“A breach of that duty which proximately causes damage gives rise to a statutory
cause of action."

Therefore, PJC 5.5 includes an instruction that the provider's negligence is a proxi-
mate cause of the occurrence if the recipient's intoxication was a proximate cause of
the occurrence. This instruction 1s similar to the special proximate cause instruction in
PJC 10.12 concerning negligent entrustment to a reckless driver.

How to use. If Pete Provider is the only person whose conduct is submitted, the
PJC 5.5 instruction should be given in lieu of the PJC 2.1 negligence definition. The
PJC 5.5 proximate cause definition should be submitted in addition to the PJC 2.4
proximate cause definition.

If common-law negligence is also submitted (regarding someone other than Pete
Provider), Pete Provider should be excluded from the PJC 2.1 negligence definition
by beginning the definition: “With respect to Don Davis and/or Paul Payne, 'negli-
gence' means..."

Proportionate responsibility. Chapter 33 of the Texas Civil Practice and Reme-
dies Code applies to claims brought under the Dramshop Act and, thus, requires
apportionment of responsibility as provided by PJC 4.3. See FFP. Operating Part-
ners, L.P. v. Duenez, 237 S.W.3d 680, 682 (Tex. 2007); Smith, 858 S.W.2d at 356.

Substitution of terms. The statute imposes liability on a licensee who provides,
sells, or serves alcoholic beverages. PJC 5.5 uses the most inclusive term, providing,
but selling or serving may also be used 1f appropriate. The statute also applies to a
nonlicensee, but only if there is a sale. In the case of a nonlicensee, the word selling
should replace the phrase providing, under authority of a license, and the word seller
should replace the word provider. Also, the phrase under authority of a license may be
deleted in cases in which that element is undisputed.

Social host liability. The supreme court has declined to recognize social host lia-
bility for serving intoxicated adult guests, Graff v. Beard, 858 S.W.2d 918, 921 (Tex.

PJC 5.5 NEGLIGENCE PER SE

1993), guests from ages eighteen to twenty, Smith v. Merritt, 940 S.W.2d 602, 608
(Tex. 1997), and guests under age eighteen, Reeder v. Daniel, 61 S.W.3d 359, 360-61
(Tex. 2001). See also Nall v. Plunkett, 404 S.W.3d 552, 555—56 (Tex. 2013) (extending
no-duty element of social host liability claim to encompass duty element of negligent
undertaking claim).

Adult provides alcoholic beverages to person under eighteen. Section 2.02(c)
provides:

(c) An adult 21 years of age or older is liable for damages proxi-
mately caused by the intoxication of a minor under the age of 18 if:

(1) the adult is not:
(A) the minor's parent, guardian, or spouse; or

(B) an adult in whose custody the minor has been commit-
ted by a court; and

(2) the adult knowingly:
(A) served or provided to the minor any of the alcoholic

beverages that contributed to the minor's intoxication;
or

(B) allowed the minor to be served or provided any of the
alcoholic beverages that contributed to the minor's
intoxication on the premises owned or leased by the
adult.

Tex. Alco. Bev. Code § 2.02(c).

Jury submissions of actions based on statutory liability should follow the language
of the statute as closely as possible. See Spencer v. Eagle Star Insurance Co. of Amer-
ica, 876 S.W.2d 154, 157 (Tex. 1994). The following questions cover the statutory ele-
ments for an adult provider's liability in an action based on section 2.02(c):

QUESTION
Did Pete Provider knowingly—

l. serve or provide to Mary Minor any of the alcoholic bev-
erages that contributed to Mary Minor's intoxication, if any; or

2. allow Mary Minor to be served or provided any of the
alcoholic beverages that contributed to Mary Minor's intoxication,
if any, on the premises owned or leased by Pete Provider?

Answer “Yes” or “No.”

Answer:

NEGLIGENCE PER SE PJC 5.5

QUESTION

Did the intoxication, if any, of Mary Minor proximately cause the
occurrence in question?

Answer “Yes” or “No.”

Answer:

Significantly, section 2.02(c) imposes liability on an adult for damages proximately
caused by the intoxication of a minor. With regard to the liability of Pete Provider,
however, section 2.02(c)(2) asks whether the adult knowingly provided any of the
alcoholic beverages that contributed to the minor’s intoxication, as opposed to whether
the conduct of the adult proximately caused the occurrence made the basis of the suit.
Consequently, both of the above questions should be necessary to the determination of
the liability of Pete Provider.

If common-law negligence is also submitted, PJC 4.1 should be given separately for
any person against whom a common-law negligence claim is submitted. For example,
if a common-law negligence claim is asserted against Mary Minor, the jury should be
provided with the following question: “Did the negligence of Mary Minor, if any,
proximately cause the occurrence in question?” As to Mary Minor, the jury should fur-
ther be provided with PJC 2.1 and 2.4 regarding negligence, ordinary care, and proxi-
mate cause.

Note that section 2.02(c) is not subject to the same exclusivity provisions that sec-
tion 2.03 creates for section 2.02(b).

PJC 5.6 NEGLIGENCE PER SE

PJC 5.6 Defense to Respondeat Superior Liability under Statutory
Dramshop Act or Common Law

If you answered “Yes” to Question [5.5] as to Pete Provider, then
answer the following questions. Otherwise, do not answer the following ques-
tions.

QUESTION

Do you find that, before the occurrence in question—

1. Pete Provider's employer required the employees to attend a com-
mission-approved seller training program; and

2. Pete Provider actually attended such a training program?
Answer “Yes” or “No.”

Answer:

QUESTION

Do you find that, before the occurrence in question, Pete Provider’s
employer directly or indirectly encouraged Pete Provider to violate the law
regarding the selling or providing of alcoholic beverages to [intoxicated per-
sons] [minors]?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 5.6 submits the employer’s “safe harbor” affirmative defense
to respondeat superior liability that would otherwise result from the actions of an
employee subject to statutory or common-law liability for the providing, selling, or
serving of alcoholic beverages to an intoxicated person or to a minor. Tex. Alco. Bev.
Code § 106.14.

Burden of proof. In 20801, Inc. v. Parker, 249 S.W.3d 392, 397 (Tex. 2008), the
Texas Supreme Court held that while it is the employer’s burden to establish the first
two elements of section 106.14(a), the burden of proof rests on the claimant to estab-
lish the third element—i.e., that the employer has directly or indirectly encouraged the
employee in question to violate the law regarding the selling or providing of alcoholic
beverages.

NEGLIGENCE PER SE PJC 5.6

Standard of care. To "encourage" its employees within the meaning of section
106.14, an employer “must act (or fail to act) at least negligently.” Parker, 249 S.W.3d
at 398. In this sense—

[t]he relevant comparison will be to a reasonable provider of the defen-
dant's type (a bar or liquor store owner, for example), and the circum-
stances in these cases will include a provider's awareness of, and reliance
on, its employees' successful completion of an approved seller training
program. ... Thus, a plaintiff can show encouragement not only by direct
evidence that the provider knowingly ordered or rewarded over-service, but
also by circumstantial evidence that the provider engaged in behavior that a
reasonable provider should have known would constitute encouragement.

Parker, 249 S.W.3d at 398. Additional instructions defining the employer's standard
of care may therefore be appropriate here.

*Employer" includes *vice-principals." For purposes of section 106.14(a),
“employer” includes “vice principals.” Parker, 249 S.W.3d at 399. An additional
instruction, similar to that found in PJC 10.14, may therefore be appropriate here.

How to use. PJC 5.6 is appropriate if the statutory affirmative defense is pleaded
and the evidence raises a question of fact on one or more of the elements. If either of
the first two elements is indisputably established, or if the claimant fails to raise a
question of fact with regard to the third element (in the second question in PJC 5.6),
that element should not be submitted. If the employer is the only defendant, any per-
centage of responsibility question should be appropriately conditioned on a negative
answer to PJC 5.6. If the employee and the employer are both defendants at the time of
submission, the percentage of responsibility question, 1f applicable, should submit
only the provider's responsibility, which would then be imputed or not, depending on
the answer to the above question.

CHAPTER 6

PJC 6.1

PJC 6.2

PJC 6.3

PJC 6.4

PJC 6.5

PJC 6.6

INTENTIONAL PERSONAL TORTS

False Imprisonment—Question. ............00 eee eee ee eee
False Imprisonment—Instruction on Unlawful Detention by
False Imprisonment—Instruction on Defense of Privilege to
Investigate Theft .... 0... 0... ccc eens
Malicious Prosecution «s as o5 esas ee OSes es oe eke ea enews
Intentional Infliction of Emotional Distress .................

Assault and Battery ...... 20.0... ccc eens

INTENTIONAL PERSONAL TORTS PJC 6.1

PJC 6.1 False Imprisonment—Question

QUESTION

Did Don Davis falsely imprison Paul Payne?

“Falsely imprison” means to willfully detain another without legal justifica-
tion, against his consent, whether such detention be effected by violence, by
threat, or by any other means that restrains a person from moving from one
place to another.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 6.1 is a broad-form question. See Tex. R. Civ. P. 277. It should
be appropriate in most cases involving claims for false imprisonment. See PJC 4.1
comments, “Broad form to be used when feasible” and “When broad-form questions
not feasible.”

Source of question and instructions. The three elements of false imprisonment
are (1) willful detention, (2) without consent, and (3) without authority of law. Sears,
Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985).

Privilege to investigate theft. A detention is privileged at law if a person reason-
ably believes that another has stolen or is attempting to steal property and then detains
that person in a reasonable manner and for a reasonable time to investigate ownership
of the property. Tex. Civ. Prac. & Rem. Code § 124.001. If the facts are so indicated,
an instruction relating to this privilege should be given. See PJC 6.3. If the detention is
unrelated to an investigation relating to ownership of property, the instruction at PJC
6.3 should not be used. There may be other circumstances of legal justification requir-
ing appropriate instructions. See, e.g., Tex. Penal Code ch. 9.

PJC 6.2 INTENTIONAL PERSONAL TORTS

PJC 6.2 False Imprisonment—Instruction on Unlawful Detention
by Threat

"Detention by threat, violence, or other means" requires proof that the threat
was such as would inspire in an ordinary person just fear of injury to his per-
son, reputation, or property.

COMMENT

When to use. PJC 6.2 is appropriate in cases in which there is a question about
the existence of a detention. In such cases, if the detention is allegedly made by
threats, violence, or other means, an instruction relating to this type of detention
should be given. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 645 (Tex.
1995). See PJC 6.1.

INTENTIONAL PERSONAL TORTS PJC 6.3

PJC 6.3 False Imprisonment—Instruction on Defense of Privilege
to Investigate Theft

When a person reasonably believes that another has stolen or is attempting to
steal property, that person has legal justification to detain the other in a reason-
able manner and for a reasonable time to investigate ownership of the property.

COMMENT

When to use. PJC 6.3 is appropriate in false imprisonment cases if the alleged
detention relates to a person's investigation of ownership of property. Tex. Civ. Prac.
& Rem. Code § 124.001. This privilege, as defined in the Code, is an affirmative
defense that must be pleaded by the defendant. It should be used in conjunction with
the broad-form question at PJC 6.1.

Source of instruction. PJC 6.3 is derived from Sears, Roebuck & Co. v. Castillo,
693 S.W.2d 374, 375 (Tex. 1985), and Tex. Civ. Prac. & Rem. Code 8 124.001. See
also Dillard Department Stores, Inc. v. Silva, 148 S.W.3d 370, 372 (Tex. 2004).

PJC 6.4 INTENTIONAL PERSONAL TORTS

PJC 6.4 Malicious Prosecution

QUESTION

Did Don Davis maliciously prosecute Paul Payne?

“Malicious prosecution" occurs when one person initiates or procures, with
malice, and without probable cause at the time the prosecution is commenced,
the prosecution of an innocent person.

“Malice” means ill will, bad or evil motive, or such gross indifference to the
rights of others as to amount to a willful or wanton act.

"Probable cause" means the existence of such facts and circumstances as
would excite belief in a person of reasonable mind, acting on the facts or cir-
cumstances within his knowledge at the time the prosecution was commenced,
that the other person was guilty of a criminal offense. The probable cause
determination asks whether a reasonable person would believe that a crime had
been committed given the facts as the complainant honestly and reasonably
believed them to be before the criminal proceedings were instituted.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 6.4 is a broad-form question. See Tex. R. Civ. P. 277. It should
be appropriate in most cases involving claims for malicious prosecution arising out of
a criminal prosecution. See PJC 4.1 comments, “Broad form to be used when feasible"
and “When broad-form questions not feasible.”

Source of question and instructions. The seven elements of malicious prosecu-
tion are (1) commencement of a criminal prosecution against the plaintiff, (2) initiated
or procured by the defendant, (3) terminated in favor of the plaintiff, (4) who was
innocent, (5) without probable cause, (6) with malice, (7) resulting in damage to the
plaintiff. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). Note
that the element relating to the prosecution’s being terminated in favor of the plaintiff
is not included in the above instructions. In the Committee’s view, this element should
be determined by the trial court as a matter of law before the submission of the case to
the jury. Cf Davis v. City of San Antonio, 752 S.W.2d 518, 523 (Tex. 1988). Under the
supreme court's formulation in Richey, the plaintiff's innocence is a factual element
that he bears the burden of establishing.

INTENTIONAL PERSONAL TORTS PJC 6.4

Dispute about procurement or initiation. In some situations there is a dispute
about the procurement or initiation of the criminal prosecution. In the case of a dispute
about "procurement," the following instruction may be used:

A person procures a criminal prosecution if his actions were
enough to cause the prosecution, and but for his actions the prosecu-
tion would not have occurred. A person does not procure a criminal
prosecution when the decision whether to prosecute is left to the dis-
cretion of another, including a law enforcement official or the grand
jury, unless the person fails to fully and fairly disclose all material
information known to him or knowingly provides false information.
A criminal prosecution may be procured by more than one person.

King v. Graham, 126 S.W.3d 75, 77 (Tex. 2003); Browning-Ferris Industries, Inc. v.
Lieck, 881 S.W.2d 288, 293 (Tex. 1994). "Initiation would not ordinarily need to be
defined, as it would be demonstrated by evidence that defendant filed formal charges
against plaintiff... ." Lieck, 881 S.W.2d at 293.

Exemplary damages. A finding of malicious prosecution may support the sub-
mission of an exemplary damages question for causes of action accruing before Sep-
tember 1, 1995. Ellis County State Bank v. Keever, 936 S.W.2d 683 (Tex. App.—
Dallas 1996, no writ). For causes of action accruing on or after September 1, 1995, a
separate issue for exemplary damages must be submitted because of the burden of
proof requirements for exemplary damages that were created by the 1995 amendment
to chapter 41 of the Texas Civil Practice and Remedies Code. Further, for actions filed
on or after September 1, 2003, the separate submission for exemplary damages must
also account for the unanimity requirement created by the 2003 amendments to chap-
ter 41. See PJC 4.2. The practitioner should be aware, however, that there is otherwise
little guidance in the case law for submissions in this area.

PJC 6.5 INTENTIONAL PERSONAL TORTS

PJC 6.5 Intentional Infliction of Emotional Distress

QUESTION

Did Don Davis intentionally inflict severe emotional distress on Paul
Payne?

Intentional infliction of emotional distress occurs when the defendant acts
intentionally or recklessly with extreme and outrageous conduct to cause the
plaintiff emotional distress and the emotional distress suffered by the plaintiff
Was severe.

“Extreme and outrageous conduct" occurs only where the conduct has been
so outrageous in character, and so extreme in degree, as to go beyond all possi-
ble bounds of decency and to be regarded as atrocious and utterly intolerable in
a civilized community.

Answer *Yes" or “No.”

Answer:

COMMENT

When to use. PJC 6.5 is a broad-form question. See Tex. R. Civ. P. 277. It may be
used if a claim for intentional infliction of emotional distress is made. See PJC 4.1
comments, “Broad form to be used when feasible” and “When broad-form questions
not feasible.” The tort is a “gap-filler” judicially created for the limited purpose of
allowing recovery in those rare instances in which a defendant intentionally inflicts
severe emotional distress in a manner so unusual that the victim has no other recog-
nized theory of redress. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68
(Tex. 1998); see also Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005);
Hoffmann-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004).

Source of question and instructions. The elements of intentional infliction of
emotional distress are (1) the defendant acted intentionally or recklessly, (2) the con-
duct was extreme and outrageous, (3) the actions of the defendant caused the plaintiff
emotional distress, and (4) the emotional distress suffered by the plaintiff was severe.
Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). The courts have been reluctant
to permit a cause of action relating to such conduct except in cases in which the con-
duct is so extreme in degree as to go beyond all possible bounds of decency and is
regarded as atrocious and "utterly intolerable in a civilized community." See Twyman,
855 S.W.2d at 621.

INTENTIONAL PERSONAL TORTS PJC 6.6

PJC 6.6 Assault and Battery

QUESTION

Did Don Davis commit an assault against Paul Payne?

A person commits an assault 1f he (1) intentionally, knowingly, or recklessly
causes bodily injury to another; or (2) intentionally or knowingly threatens
another with imminent bodily injury; or (3) intentionally or knowingly causes
physical contact with another when he knows or should reasonably believe that
the other will regard the contact as offensive or provocative.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 6.6 may be used in cases in which an assault or battery claim is
made. Historically, assault and battery were two separate torts, but today the terms are
used together or interchangeably to refer to conduct defined as “assault” in the Penal
Code. The above definition is taken from Tex. Penal Code § 22.01, which has been
held to apply in civil as well as criminal cases. See, e.g., Wal-Mart Stores, Inc. v.
Odem, 929 S.W.2d 513, 522 (Tex. App.—San Antonio 1996, writ denied); Childers v.
A.S., 909 S.W.2d 282, 292 (Tex. App.—Fort Worth 1995, writ denied).

Caveat. The above instruction (identical minus the word “or” before item (2))
was used in Wal-Mart Stores, Inc., 929 S.W.2d at 521, without objection. Because a
charge should not burden the jury with surplus instructions, the Committee recognizes
that there may be other ways of more succinctly submitting the conduct at issue.

Damages. Foreseeability is not required in determining damages for an inten-
tional or knowing assault if recovery is sought for the immediate and direct conse-
quences of the assault. Thompson v. Hodges, 237 S.W.2d 757, 759 (Tex. App.—San
Antonio 1951, writ ref'd n.r.e.).

CHAPTER 7
PJC 7.1
PIC 72
PI 73
PJC 7.4
PJC 7,5
PJC 7.6
PIC 7.7
PJC 7.8
PJC 7.9
PJC 7.10

PJC 7.11

PJC 7.12

PIC TAS

THEFT LIABILITY

Owner of Property at Issue—Question.............000.000. 93
Theft of Property—Question........ 0.0... cece eee eee 94
Theft of Service—Question. ........ 000s 98
Conversion of Property—Question..........00 000 cece eee 101
Theft Damages—Question ......... 00... cece eee ee 102
Sample Instructions—Actual Damages for Theft............. 105
Additional Damages—Question ............ 000: c cence eee 107
Attorney's Fees—Question...........0 00. c eee eee eee ee 108
Conversion Damages—Question .............00 eee eee eee 111
Sample Instructions—Actual Damages for Conversion........ 114

Predicate Question and Instruction on Award of Exemplary
Damages for Conversion... 117

Question and Instruction on Exemplary Damages ............ 119

Question and Instruction for Imputing Liability for Exemplary
Damages es meroes eee ue de Re ERR HS ed ER RE 122

THEFT LIABILITY PJC 7.1

PJC 7.1 Owner of Property at Issue—Question

QUESTION

Did Paul Payne own the property at issue?
Paul Payne owned the property at issue if he had—

1. title to the property; or

2. possession of the property, whether lawful or not; or

3. a greater right to possession of the property than Don Davis.
"Possession" means actual care, custody, control, or management.
Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 7.1 should be used when the identity of the owner of the appro-
priated property is disputed.

Source. PJC 7.1 is derived from Tex. Penal Code § 1.07(a)(35), (a)(39).

PJC 7.2 THEFT LIABILITY

PJC 7.2 Theft of Property—Question

If you answered “Yes” to Question [7.1] then answer the following
question. Otherwise, do not answer the following question.

QUESTION

Did Don Davis commit theft of Paul Payne’s property?
Don Davis committed theft if he—
1. appropriated property; and

2. the appropriation was without the [effective] consent of the owner;
and

3. Don Davis intended to appropriate the property.
Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 7.2 is a broad-form question. See Tex. R. Civ. P. 277. It should
be appropriate in most cases involving a claim for theft of property under the Texas
Theft Liability Act, Tex. Civ. Prac. & Rem. Code §§ 134.001—.005.

Source of instruction. The definition of theft is derived from Tex. Penal Code
§ 31.03(a), (b)(1). See also the current edition of State Bar of Texas, Texas Criminal
Pattern Jury Charges—Crimes against Persons & Property CPJC 92.2. Depending on
the specific circumstances, one or more of the following definitions may apply.

Definitions and elements of theft. The following definitions, derived from the
Texas Penal Code, should be submitted where supported by the evidence:

Don Davis appropriates property if he—
1. acquires the property; or
2. otherwise exercises control over the property; or

3. brings about a transfer or purported transfer of title or any
other nonpossessory interest in the property, whether that transfer
or purported transfer is to Don Davis or another.

Don Davis intended to appropriate the property if he had the con-
scious objective or desire to—

THEFT LIABILITY PJC 7.2

[Include only those instructions supported by the evidence.]

1. withhold the property from the owner permanently; or

2. withhold the property from the owner for so extended a
period of time that a major portion of the value or enjoyment of the
property is lost to the owner; or

3. restore the property only on payment of reward or other
compensation; or

4. dispose of the property in a manner that makes recovery
of the property by the owner unlikely.

See Tex. Penal Code $8 6.03(a), 31.01(2), (4).

Submission of conditioning instruction. The conditioning instruction should be
used only if PJC 7.1 is submitted to the jury.

Submission of specific conduct constituting theft. The Theft Liability Act
incorporates by reference the conduct defined as theft under Texas Penal Code sec-
tions 31.03 (theft), 31.06 (theft by check or draft), 31.07 (theft of vehicle), 31.11 (tam-
pering with identification numbers), and 31.12, 31.13, and 31.14 (theft of
multichannel video or information services). Depending on the specific circumstances,
it might be appropriate to incorporate the statutory language of the specific provision
that is most relevant to the conduct at issue.

Property. If the nature of the appropriated property is disputed, the following
instruction should be included:

"Property" means—

1l. [tangible/intangible] personal property [including any-
thing severed from land]; or

2. real property; or

3. adocument, including money, that represents or embodies
anything of value.

See Tex. Penal Code § 31.01(5).

Effective consent rendered ineffective by deception. As an alternative to the
basic instruction on theft, appropriation of property is without the consent of the owner
where the consent is not effective. See Tex. Penal Code § 31.01(3). In specific circum-
stances, it might be appropriate to include all or part of the following instruction
addressing ineffective consent:

PJC 7.2 THEFT LIABILITY

Consent to the appropriation of property is not effective if Don
Davis engaged in deception and by this deception induced that con-
sent. Don Davis engaged in deception if—

[Include only those means of deception supported by the evidence.]

1. Don Davis created or confirmed by words or conduct a
false impression of law or fact that was likely to affect the judg-
ment of another in the transaction and Don Davis did not believe
this impression of law or fact to be true; or

2. Don Davis failed to correct a false impression of law or
fact that was likely to affect the judgment of another in the transac-
tion, Don Davis previously created or confirmed this false impres-
sion, and Don Davis did not believe this impression of law or fact
to be true; or

3. Don Davis prevented another from acquiring information
likely to affect that person's judgment in the transaction; or

4. Don Davis promised performance that was likely to
affect the judgment of another in the transaction and Don Davis
either did not intend to perform or knew that he would not per-
form; or

5. Don Davis sold or otherwise transferred or encumbered
property without disclosing a lien, security interest, adverse claim,
or other legal impediment to the enjoyment of the property,
whether the lien, security interest, claim, or impediment was or
was not valid or was or was not a matter of official record.

See Tex. Penal Code $ 31.01(1).

Effective consent rendered ineffective by coercion. As an alternative to the
above instruction, appropriation of property is without the consent of the owner where
the consent is not effective by reason of coercion. See Tex. Penal Code § 1.07(a)(9). In
certain circumstances, it might be appropriate to include the following instruction
addressing ineffective consent by reason of coercion:

Consent to the appropriation of property is not effective if Don
Davis engaged in coercion and by this coercion induced that consent.
Don Davis engaged in coercion if he threatened—

[Include only those types of coercion supported by the evidence. ]

THEFT LIABILITY PJC 7.2

l. to commit a criminal offense [identify criminal offense];
Or

2. to inflict bodily injury in the future on the person threat-
ened or another; or

3. to accuse a person of any offense; or
4. to expose a person to hatred, contempt, or ridicule; or
5. to harm the credit or business repute of any person; or

6. to take or withhold action as a public servant, or to cause
a public servant to take or withhold action.

A threat can be communicated in any manner.
See Tex. Penal Code $ 1.07(a)(9).

Owner. If the identity of the owner of the appropriated property is disputed, see
PJC 7.1.

PJC 7.3 THEFT LIABILITY

PJC 7.3 Theft of Service—Question

QUESTION

Did Don Davis commit theft of Paul Payne's services?
Don Davis committed theft of Paul Payne's services if he—

l. intentionally or knowingly secured performance of a service by
[deception, threat, or false token]; and

2. knew the service was provided only for compensation; and
3. intended to avoid payment for the service.
Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 7.3 is a broad-form question. See Tex. R. Civ. P. 277. It should
be appropriate in most cases involving a claim for theft of service under the Texas
Theft Liability Act, Tex. Civ. Prac. & Rem. Code §§ 134.001-.005.

Source of instruction. The definition of theft of service is derived from Tex.
Penal Code § 31.04. See also the current edition of State Bar of Texas, Texas Criminal
Pattern Jury Charges—Crimes against Persons & Property CPJC 92.7.

Definitions and elements of theft of service. The following definitions, derived
from the Texas Penal Code, should be submitted where supported by the evidence:

The term "service" includes—
1. labor and professional services; and

2. telecommunication, public utility, or transportation ser-
vices; and

3. lodging, restaurant service, and entertainment; and
4. thesupply of a motor vehicle or other property for use.

Don Davis secured performance of a service by deception if Don
Davis engaged in deception and by this deception induced the perfor-
mance of a service. Don Davis engaged in deception if—

[Include only those means of deception supported by the evidence.]

THEFT LIABILITY PJC 7.3

3. Don Davis prevented another from acquiring information
likely to affect that person's judgment in the transaction; or

4. Don Davis promised performance that was likely to
affect the judgment of another in the transaction and Don Davis
either did not intend to perform or knew that he would not per-
form; or

A person intentionally secures performance of a service by decep-
tion 1f it is the person's conscious objective to secure the perfor-
mance of the service by deception.

A person knowingly secures performance of a service by decep-
tion if the person is aware the person is securing the performance of
the service by deception.

A person knows a service is provided only for compensation if the
person is aware that the service is provided only for compensation.

A person intends to avoid payment for services 1f the person has
the conscious objective of avoiding the payment for the services.

See Tex. Penal Code §§ 6.03, 31.01(1), (6), 31.04(a).

Submission of specific conduct. The Theft Liability Act incorporates by refer-
ence the conduct defined as theft under Texas Penal Code sections 31.04 (theft of ser-
vice) and 31.06 (theft by check or draft). Depending on the specific circumstances, it
might be appropriate to include the statutory language of the specific provision that is
most relevant to the conduct at issue.

PJC 7.3 THEFT LIABILITY

Tex. Penal Code § 31.04(a) provides for several quite different ways of committing
the offense of theft of service. The Committee has addressed the instructions appropri-
ate for what it regarded as the primary form of the offense: obtaining services by
deception, as defined in Tex. Penal Code § 31.04(a)(1).

Caveat regarding deception. Under Tex. Penal Code § 31.04(a)(1), the decep-
tion must be the means by which the services are secured. Thus deception—such as
presenting as good an insufficient-funds check—after the service is rendered is not
sufficient. Gibson v. State, 623 S.W.2d 324 (Tex. Crim. App. 1980); Cortez v. State,
582 S.W.2d 119 (Tex. Crim. App. 1979).

Definition of “false token." There is no statutory definition of the term “false
token.” In one unreported case it was defined by the following: “‘False token’ is a
thing or object or document which is used as a means to defraud and which is of such
character that, were it not false, it would commonly be accepted as what it obviously
appears and purports to be." Middleton v. State, Nos. 14-07-00946-CR, 14-07-00947-
CR, 2009 WL 196063, at *5 (Tex. App.—Houston [14th Dist.] Jan. 29, 2009, pet.
ref'd) (not designated for publication) (appellant did not dispute definition and did not
deny that checks involved fell within definition).

100

THEFT LIABILITY PJC 7.4

PJC 7.4 Conversion of Property—Question

QUESTION

Did Don Davis convert Paul Payne's property?

Don Davis converted Paul Payne's property if he exercised dominion and
control over Paul Payne's property without Paul Payne's consent and to the
exclusion of Paul Payne's right of possession and use.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 7.4 is a broad-form question. See Tex. R. Civ. P. 277. It should
be appropriate in most cases involving a claim for conversion of property.

Source of instruction and definition of conversion. PJC 7.4 is derived from
Dolenz v. Continental National Bank, 620 S.W.2d 572 (Tex. 1981).

101

PJC 7.5 THEFT LIABILITY

PJC 7.5 Theft Damages—Question

If you answered “Yes” to Question [applicable liability question],
then answer the following question. Otherwise, do not answer the following
question.

QUESTION

What sum of money, if any, if paid now in cash, would fairly and reasonably
compensate Paul Payne for his damages, if any, that resulted from such con-
duct?

Consider the following elements of damages, if any, and none other.
[Insert appropriate instructions. See examples in PJC 7.6.]

Answer separately, in dollars and cents, for damages, if any.
1. [Element A] sustained in the past.

Answer:

2. [Element A] that, in reasonable probability, will be sustained in the
future.

Answer:

3. [Element B] sustained in the past.

Answer:

4. [Element B] that, in reasonable probability, will be sustained in the
future.

Answer:

102

THEFT LIABILITY PJC 7.5

COMMENT

When to use. PJC 7.5 should be predicated on a “Yes” answer to PJC 7.2 or 7.3
and may be adapted for use in most Texas Theft Liability Act cases by the addition of
appropriate instructions setting out legally available measures of damages. See PJC
7.6. If only one measure of damages is supported by the pleadings and proof, the
measure may be incorporated into the question.

Actual damages. A person who commits theft is civilly liable under the Act “for
the damages resulting from the theft.” Tex. Civ. Prac. & Rem. Code § 134.003(a). A
"person who has sustained damages resulting from theft may recover . . . the amount
of actual damages found by the trier of fact and, in addition to actual damages, dam-
ages awarded by the trier of fact in a sum not to exceed $1,000." Tex. Civ. Prac. &
Rem. Code § 134.005(a)(1). Because the Act does not further define “actual dam-
ages," actual damages under the Act have been recognized as those recoverable at
common law. Beaumont v. Basham, 205 S.W.3d 608, 619 (Tex. App.—Waco 2006,
pet. denied); cf Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812,
816 (Tex. 1997) (“actual damages” recoverable under DTPA “are those damages
recoverable under common law").

At common law, actual damages are either direct or consequential. Direct damages
are the necessary and usual result of the defendant's wrongful act; they flow naturally
and necessarily from the wrong. Direct damages compensate the plaintiff for the loss
that is conclusively presumed to have been foreseen by the defendant from its wrong-
ful act. Consequential damages result naturally, but not necessarily, from the defen-
dant's wrongful act. Under the common law, consequential damages need not be the
usual result of the wrong but must be foreseeable and must be directly traceable to the
wrongful act and result from it. See Houston Livestock Show & Rodeo, Inc. v. Ham-
rick, 125 S.W.3d 555, 582 (Tex. App.—Austin 2003, no pet.).

If consequential damages are sought, that element should be submitted with the
additional instruction that the element of damages was “a natural, probable, and fore-
seeable consequence of Don Davis's theft of the property." See the current edition of
State Bar of Texas, Texas Pattern Jury Charges—Business, Consumer, Insurance &
Employment PJC 115.5.

Elements of damages submitted separately. The Committee generally recom-
mends that multiple elements of damages be separately submitted to the jury. Harris
County v. Smith, 96 S.W.3d 230, 233-34 (Tex. 2002) (broad-form submission of multi-
ple elements of damages may lead to harmful error if there is a proper objection rais-
ing insufficiency of the evidence to support one or more of the elements submitted);
see also Tex. Civ. Prac. & Rem. Code § 41.008(a) (“In an action in which a claimant
seeks recovery of damages, the trier of fact shall determine the amount of economic
damages separately from the amount of other compensatory damages."). Separating
economic from noneconomic damages is required to allow the court to apply the limits

103

PJC 7.5 THEFT LIABILITY

on recovery of exemplary damages based on economic and noneconomic damages as
required by Tex. Civ. Prac. & Rem. Code § 41.008(b).

Further, *[p]rejudgment interest may not be assessed or recovered on an award of
future damages.” Tex. Fin. Code § 304.1045 (wrongful death, personal injury, or prop-
erty damage cases); see also Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc.,
962 S.W.2d 507, 514, 530 (Tex. 1998), superseded by statute on other grounds, Tex.
Fin. Code § 304.1045 (reconciling equitable prejudgment interest with statutory pre-
judgment interest). Therefore, separation of past and future damages is required.

Elements considered separately. Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 770 (Tex. 2002), provides an instruction for cases involving undefined or
potentially overlapping categories of damages. In those cases, the following language
should be substituted for the instruction to consider each element separately:

Consider the following elements of damages, if any, and none
other. You shall not award any sum of money on any element if you
have otherwise, under some other element, awarded a sum of money
for the same loss. That is, do not compensate twice for the same loss,
if any.

Prejudgment interest. Instructing the jury not to add interest is suggested
because prejudgment interest, if recoverable, will be calculated by the court at the time
of judgment. If interest paid on an obligation is claimed as an element of damages, it
may be necessary to modify the instruction on interest.

104

THEFT LIABILITY PJC 7.6

PJC 7.6 Sample Instructions—A ctual Damages for Theft

Explanatory note: Damages instructions in Texas Theft Liability Act actions are
often necessarily fact-specific. Unlike most other form instructions in this volume,
therefore, the following sample instructions are illustrative only, using a hypothetical
situation to give a few examples of how instructions may be worded to submit various
legal measures of damages for use in connection with the theft damages question, PJC
7.5.

Sample A—Market value of the appropriated property

“Market value” means the amount that would be paid in cash by a willing
buyer who desires to buy, but is not required to buy, to a willing seller who
desires to sell, but is under no necessity of selling.

Sample B—Market value of the appropriated services

Sample C—Lost income from appropriated business contacts and files that was
a natural, probable, and foreseeable consequence of Don Davis’s theft of the

property

The income that Paul Payne would have otherwise realized by providing
services to Ais clients had Don Davis not unlawfully appropriated Paul Payne's
customer lists and files.

Sample D— Lost rental value of the appropriated property that was a natural,
probable, and foreseeable consequence of Don Davis 's theft of the property

The income that Paul Payne would have otherwise realized from renting the
property to others, the loss of which was a natural, probable, and foreseeable
consequence of Don Davis's theft of the property.

COMMENT

When to use. See explanatory note above. Because damages instructions in Texas
Theft Liability Act suits are necessarily fact-specific, no true "pattern" instructions are
given—only samples of some measures of general damages available in such actions.
This list is not exhaustive. The samples are illustrative only, adapted to a hypothetical
fact situation, and must be rewritten to fit the particular damages raised by the plead-
ings and proof and recoverable under a legally accepted theory. The instructions
should be drafted in an attempt to make the plaintiff factually whole but not to put the

105

PJC 7.6 THEFT LIABILITY

plaintiff in a better position than he would have been in had the defendant not appro-
priated the plaintiff's property.

The following are examples of damages that have been recovered.

Lost income from appropriated business contacts and files. The plaintiff can
recover the income lost from clients who had their tax returns prepared by a former
coworker who unlawfully appropriated the plaintiff's customer files and customer lists
and solicited their business. See Schmader v. Butschek, No. 05-15-00278-CV, 2016
WL 4119474, at *3 (Tex. App.—Dallas July 29, 2016, no pet.).

Lost rental income. The plaintiff can recover the cost of purchasing the appropri-
ated property as well as the lost rental value. Southwest Grain Co. v. Pilgrim's Pride
S.A. de C.V., No. 13-07-00557-CV, 2010 WL 2638483, at *5 (Tex. App.—Corpus
Christi-Edinburg June 28, 2010, no pet.).

Mental anguish damages. In Beaumont v. Basham, 205 S.W.3d 608, 620 (Tex.
App.—Waco 2006, pet. denied), the court recognized that the plaintiff could recover
mental anguish damages under the Act where the party committing theft acted with
malice.

106

THEFT LIABILITY PJC 7.7

PJC 7.7 Additional Damages—Question

If you found, in answer to Question[s] [applicable damages ques-
tion(s)], that Paul Payne sustained actual damages, then answer the following
question. Otherwise, do not answer the following question.

QUESTION
You are instructed that, in order for you to find additional damages, your
answer to this question must be unanimous.

What sum of money, if any, if paid now in cash, should be assessed against
Don Davis and awarded to Paul Payne as additional damages, if any, for the
conduct found in response to Question [liability question for Texas
Theft Liability Act claim]?

Answer in dollars and cents, if any.

Answer:

COMMENT

When to use. PJC 7.7 is used to submit additional damages. It should be pred-
icated on a finding of liability on a Texas Theft Liability Act claim and an award of
actual damages. A “person who has sustained damages resulting from theft may
recover .. . the amount of actual damages found by the trier of fact and, in addition to
actual damages, damages awarded by the trier of fact in a sum not to exceed $1,000."
Tex. Civ. Prac. & Rem. Code § 134.005(a)(1). The damages cap of $1,000 can be
applied postverdict. See, e.g., Beaumont v. Basham, 205 S.W.3d 608, 625 (Tex.
App.—Waco 2006, pet. denied) (reversing trial court's award of $10,000 in additional
damages and rendering judgment that plaintiff recover statutory maximum of $1,000).

Answer must be unanimous. See Wal-Mart Stores, Inc. v. Forte, 497 S.W.3d
460, 464 (Tex. 2016) (holding that Texas Civil Practice and Remedies Code chapter
4] "applies to any action in which a claimant seeks damages relating to a cause of
action"). See Tex. Civ. Prac. & Rem. Code § 41.003(d).

107

PJC 7.8 THEFT LIABILITY

PJC 7.8 Attorney's Fees—Question

QUESTION
What is a reasonable fee for the necessary legal services of [Paul Payne's/
Don Davis's] attorney?

A reasonable fee is the reasonable hours worked, and to be worked, multi-
plied by a reasonable hourly rate for that work.

Do not include fees that relate solely to any other claim.
Answer with an amount in dollars and cents for each of the following:
l. For representation in the trial court.

Answer:

2. For representation in the court of appeals.

Answer:

3. For representation at the petition for review stage in the Supreme
Court of Texas.

Answer:

4. For representation at the merits briefing stage in the Supreme Court
of Texas.

Answer:

5. For representation through oral argument and the completion of
proceedings in the Supreme Court of Texas.

Answer:

COMMENT

When to use. Section 134.005(b) of the Texas Civil Practice and Remedies Code
provides that *[e]ach person who prevails in a suit under [the Texas Theft Liability Act]
shall be awarded court costs and reasonable and necessary attorney's fees." A prevail-
ing person under the Texas Theft Liability Act may be the plaintiff or defendant. See
Agar Corp. v. Electro Circuits International, 580 S.W.3d 136, 146-48 (Tex. 2019)
(“The statute's command that attorney's fees be awarded to ‘each person who pre-
vails’ unambiguously applies to all persons, be they a prevailing plaintiff or defen-

108

THEFT LIABILITY PJC 7.8

dant."). See also Arrow Marble LLC v. Estate of Killion, 441 S.W.3d 702, 706 (Tex.
App.—Houston [1st Dist.] 2014, no pet.) (“Courts have held that the phrase ‘prevail-
ing party’ in section 134.005(b) of the [Texas Theft Liability Act] includes both a
plaintiff successfully prosecuting a theft suit and a defendant successfully defending
against one.").

Actual damages not required. While some fee-shifting statutes require the pre-
vailing party to have recovered actual damages to obtain an award of attorney's fees,
actual damages are not a necessary element for the recovery of attorney's fees under
the Theft Liability Act. See In re Corral-Lerma, 451 S.W.3d 385, 386—87 (Tex. 2014)
(Theft Liability Act provides for attorney's fees even without underlying damages
recovery).

Some other guiding considerations. “When a claimant wishes to obtain attor-
ney's fees from the opposing party, the claimant must prove that the requested fees are
both reasonable and necessary." Rohrmoos Venture v. UTSW DVA Healthcare, LLP,
578 S.W.3d 469, 489 (Tex. 2019). Both of these elements are questions of fact to be
determined by the fact finder and act as limits on the amount of fees that a prevailing
party can shift to the non-prevailing party." Rohrmoos Venture, 578 S.W.3d at 489.

The lodestar analysis applies to any situation in which an objective calculation of
reasonable hours worked times a reasonable rate can be employed. The “fact finder's
starting point for calculating an attorney's fee award is determining the reasonable
hours worked multiplied by a reasonable hourly rate, and the fee claimant bears the
burden of providing sufficient evidence on both counts.” Rohrmoos Venture, 578
S.W.3d at 498. The process applies to both jury trials and bench trials. See Rohrmoos
Venture, 578 S.W.3d at 494. This applies even in cases where the fee agreement is one
for an arrangement other than hourly billing, as well as in the sanctions context. Rohr-
moos Venture, 578 S.W.3d at 499 n.10; Nath v. Texas Children’s Hospital, 576 S.W.3d
707, 710 (Tex. 2019) (per curiam).

Factors to consider. In an appropriate case, additional considerations may be
taken into account in determining a reasonable and necessary attorney's fee. See Rohr-
moos Venture, 578 S.W.3d at 500-01.

In such a case, the following instruction should be used. However, the additional
consideration cannot be a consideration already subsumed in the reasonable fee. Rohr-
moos Venture, 578 S.W.3d at 500-02.

A reasonable fee is presumed to be the reasonable hours worked,
and to be worked, multiplied by a reasonable hourly rate for that
work. But other considerations may justify an enhancement or reduc-
tion to that amount. You must determine whether evidence of those
considerations overcomes the presumption and necessitates an
adjustment to a reasonable fee.

109

PJC 7.8 THEFT LIABILITY

Zero fees. Unless evidence was admitted that no fee was needed to assert or
defend a claim, a zero-fee award may be reversible error. See Smith v. Patrick W.Y.
Tam Trust, 296 S.W.3d 545, 548 (Tex. 2009). The trial court can correct the error by
directing jurors before they are discharged to return to the jury room and reform their
answer. See Tex. R. Civ. P. 295; Smith, 296 S.W.3d at 548. In such cases, the following
instruction may be used:

The evidence in this case indicates that some amount of attorney
fees is reasonable, making the finding of zero inappropriate. It is up
to the court to fashion a judgment from the answers to the jury ques-
tions. Therefore, I am instructing you to return to your deliberations
to make a decision on the question[s] for attorney fees that is consis-
tent with the evidence and other instructions given by the court to the

jury.

Segregation of fees. If any attorney's fees relate solely to a claim for which such
fees are unrecoverable, a claimant must segregate recoverable from unrecoverable
fees. Intertwined facts do not make unrecoverable fees recoverable; it is only when
discrete legal services advance both a recoverable and unrecoverable claim that they
are so intertwined that they need not be segregated. Tony Gullo Motors I, L.P. v.
Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006); see also Kinsel v. Lindsey, 526 S.W.3d
411, 427 (Tex. 2017). A party, however, may recover attorney's fees incurred in over-
coming defenses or counterclaims to a claim for which attorney's fees are recoverable.
Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007). Segregation of fees may be
required on a claim-by-claim basis. See Horizon Health Corp. v. Acadia Healthcare
Co., Inc., 520 S.W.3d 848, 884 (Tex. 2017) (no evidence to support breach of contract
claim, but evidence supported Texas Theft Liability Act claim so remand for testi-
mony segregating on a claim-by-claim basis); Chapa, 212 S.W.3d at 313-14.

Any error in failing to segregate attorney's fees is waived by a failure to object to
the lack of apportionment. Green International, Inc. v. Solis, 951 S.W.2d 384, 389
(Tex. 1997). Accordingly, the question to be submitted may vary from the pattern
above in cases involving multiple claims where fees are not recoverable under one or
more of the claims or where there are multiple defendants who may not be charged
with fee shifting.

110

THEFT LIABILITY PJC 7.9

PJC 7.9 Conversion Damages—Question

If you answered “Yes” to Question [7.4], then answer the following
question. Otherwise, do not answer the following question.

QUESTION

What sum of money, if any, if paid now in cash, would fairly and reasonably
compensate Paul Payne for his damages, if any, that resulted from such con-
duct?

Consider the following elements of damages, if any, and none other.
[Insert appropriate instructions. See examples in PJC 7.10.]

Answer separately, in dollars and cents, for damages, if any.
1. [Element A] sustained in the past.

Answer:

2. [Element A] that, in reasonable probability, will be sustained in the
future.

Answer:

3. [Element B] sustained in the past.

Answer:

4. [Element B] that, in reasonable probability, will be sustained in the
future.

Answer:

111

PJC 7.9 THEFT LIABILITY

COMMENT

When to use. PJC 7.9 should be predicated on a “Yes” answer to PJC 7.4 and
may be adapted for use in most conversion cases by the addition of appropriate instruc-
tions setting out legally available measures of damages. See PJC 7.10. If only one
measure of damages is supported by the pleadings and proof, the measure may be
incorporated into the question.

Actual damages. In an action for conversion, the plaintiff can seek the return of
the property plus actual damages. See Winkle Chevy-Olds-Pontiac, Inc. v. Condon, 830
S.W.2d 740, 746 (Tex. App.—Corpus Christi-Edinburg 1992, writ dism'd). At com-
mon law, actual damages are either direct or consequential. Direct damages are the
necessary and usual result of the defendant's wrongful act; they flow naturally and
necessarily from the wrong. Direct damages compensate the plaintiff for the loss that
is conclusively presumed to have been foreseen by the defendant from its wrongful
act. Consequential damages result naturally, but not necessarily, from the defendant's
wrongful act. Under the common law, consequential damages need not be the usual
result of the wrong but must be foreseeable and must be directly traceable to the
wrongful act and result from it. See Houston Livestock Show & Rodeo, Inc. v. Ham-
rick, 125 S.W.3d 555, 582 (Tex. App.—Austin 2003, no pet.).

Elements of damages submitted separately. The Committee generally recom-
mends that multiple elements of damages be separately submitted to the jury. Harris
County v. Smith, 96 S.W.3d 230, 233-34 (Tex. 2002) (broad-form submission of multi-
ple elements of damages may lead to harmful error if there is a proper objection rais-
ing insufficiency of the evidence to support one or more of the elements submitted);
see also Tex. Civ. Prac. & Rem. Code 8 41.008(a) (“In an action in which a claimant
seeks recovery of damages, the trier of fact shall determine the amount of economic
damages separately from the amount of other compensatory damages."). Separating
economic from noneconomic damages is required to allow the court to apply the limits
on recovery of exemplary damages based on economic and noneconomic damages as
required by Tex. Civ. Prac. & Rem. Code § 41.008(b).

Further, “[p]rejudgment interest may not be assessed or recovered on an award of
future damages." Tex. Fin. Code § 304.1045 (wrongful death, personal injury, or prop-
erty damage cases); see also Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc.,
962 S.W.2d 507, 514, 530 (Tex. 1998) superseded by statute on other grounds, Tex.
Fin. Code 8 304.1045 (reconciling equitable prejudgment interest with statutory pre-
judgment interest). Therefore, separation of past and future damages is required.

112

THEFT LIABILITY PJC 7.9

113

PJC 7.10 THEFT LIABILITY

PJC 7.10 Sample Instructions—A ctual Damages for Conversion

Explanatory note: Damages instructions in conversion actions under the Texas
Theft Liability Act are often necessarily fact-specific. Unlike most other form
instructions in this volume, therefore, the following sample instructions are illustrative
only, using a hypothetical situation to give a few examples of how instructions may be
worded to submit various legal measures of damages for use in connection with the
conversion damages question, PJC 7.9.

Sample A—Market value of the appropriated property

“Market value" means the amount that would be paid in cash by a willing
buyer who desires to buy, but is not required to buy, to a willing seller who
desires to sell, but is under no necessity of selling.

Sample B—Market value of the appropriated services

Sample C—Lost income from appropriated business contacts and files that was
a natural, probable, and foreseeable consequence of Don Davis 's theft of the
property

The income that Paul Payne would have otherwise realized by providing
services to his clients had Don Davis not unlawfully appropriated Paul Payne's
customer lists and files, the loss of which was a natural, probable, and foresee-
able consequence of Don Davis's theft of the property.

Sample D— Lost rental value of the appropriated property that was a natural,
probable, and foreseeable consequence of Don Davis's theft of the property

Sample E—Intrinsic value of the property
The value of the property to Paul Payne.
Sample F—Loss of use of property
The rental value of the property.
Sample G—Travel expenses

The expenses incurred by Paul Payne in traveling to inspect the property
after conversion.

114

THEFT LIABILITY PJC 7.10

COMMENT

When to use. See explanatory note above. Because damages instructions in con-
version suits under the Texas Theft Liability Act are necessarily fact-specific, no true
"pattern" instructions are given—only samples of some measures of general damages
available in such actions. This list is not exhaustive. The samples are illustrative only,
adapted to a hypothetical fact situation, and must be rewritten to fit the particular dam-
ages raised by the pleadings and proof and recoverable under a legally accepted the-
ory. The instructions should be drafted in an attempt to make the plaintiff factually
whole but not to put the plaintiff in a better position than he would have been in had
the defendant not appropriated the plaintiff's property.

The following are examples of damages that have been recovered.

Market value. Prewitt v. Branham, 643 S.W.2d 122, 123 (Tex. 1982) (one mea-
sure of damages for conversion is market value of converted items at time and place of
conversion).

Intrinsic value. International-Great N.R. v. Casey, 46 S.W.2d 669, 670 (Tex.
Comm’n App. 1932, holding approved) (intrinsic value of property may be recovered
where there is no market or replacement value for the property); see also Strickland v.
Medlen, 397 S.W.3d 184, 192 (Tex. 2013) (when dog's market value cannot be ascer-
tained, correct measure of damages is actual value).

Loss of use. Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115, 119 (Tex.
1984) (loss-of-use damages may be recovered for period of time before property was
returned to owner). Note: the plaintiff may not recover both loss of use and loss of
rental value for the same time period.

Lost profits. Winkle Chevy-Olds-Pontiac, Inc. v. Condon, 830 S.W.2d 740, 746
(Tex. App.— Corpus Christi—Edinburg 1992, writ dism’d) (lost profits can be recovered
where defendant has notice of them).

Travel expenses. Clifton v. Jones, 634 S.W.2d 883, 887 (Tex. App.—El Paso
1982, no writ) (plaintiff can recover expenses incurred in traveling to inspect property
after conversion).

115

PJC 7.10 THEFT LIABILITY

Mental anguish damages. Mental anguish damages cannot be recovered on a
conversion claim. See Winkle-Chevy-Olds-Pontiac, Inc., 830 S.W.2d at 746. Note that
in Beaumont v. Basham, 205 S.W.3d 608, 620 (Tex. App.—Waco 2006, pet. denied),
the court recognized that the plaintiff could recover mental anguish damages under the
Act where the party committing theft acted with malice.

116

THEFT LIABILITY PJC 7.11

PJC 7.11 Predicate Question and Instruction on Award of
Exemplary Damages for Conversion

Answer the following question only if you unanimously answered “Yes” to
Question [conversion liability question]. Otherwise, do not answer the
following question.

To answer “Yes” to the following question, your answer must be unanimous.
You may answer “No” to the following question only upon a vote of ten or
more jurors. Otherwise, you must not answer the following question.

QUESTION

Do you find by clear and convincing evidence that the harm to Paul Payne
resulted from malice?

“Clear and convincing evidence" means the measure or degree of proof that
produces a firm belief or conviction of the truth of the allegations sought to be
established.

“Malice” means a specific intent by Don Davis to cause substantial injury or
harm to Paul Payne.

COMMENT

When to use. PJC 7.11 is to be used as a predicate question to PJC 7.12, the ques-
tion for exemplary damages. It is based on an affirmative finding to the liability ques-
tion on conversion.

In a case in which a defendant has requested a bifurcated trial pursuant to Tex. Civ.
Prac. & Rem. Code § 41.009, PJC 7.11 should be answered in the first phase of the
trial.

Source of question. PJC 7.11 is derived from Tex. Civ. Prac. & Rem. Code
$8 41.001(7), (11), 41.003(a)(1), (a)(2), (a)(3), (d), 41.004(a); Tex. R. Civ. P. 226a.

Actual damages generally required. In general, exemplary damages may be
awarded only if damages other than nominal damages are awarded. Tex. Civ. Prac.
& Rem. Code 8 41.004(a). For actions filed before September 1, 2003, see the Com-
ment to PJC 7.11 in the 2018 edition of this volume.

Multiple defendants. The following conditioning instruction may be substituted
in a case involving claims against multiple defendants:

Answer the following question regarding a defendant only if you
unanimously answered “Yes” to Question [conversion liabil-

117

PJC 7.11 THEFT LIABILITY

ity question] regarding that defendant. Otherwise, do not answer the
following question regarding that defendant.

118

THEFT LIABILITY PJC 7.12

PJC 7.12 Question and Instruction on Exemplary Damages

Answer the following question only if you unanimously answered “Yes” to
Question [7.11]. Otherwise, do not answer the following question.

You must unanimously agree on the amount of any award of exemplary
damages.

QUESTION

What sum of money, if any, if paid now in cash, should be assessed against
Don Davis and awarded to Paul Payne as exemplary damages, if any, for the
conduct found in response to Question [7.11]?

“Exemplary damages” means an amount that you may in your discretion
award as a penalty or by way of punishment.

Factors to consider in awarding exemplary damages, if any, are—
1. The nature of the wrong.
2. The character of the conduct involved.
3. The degree of culpability of Don Davis.
4. The situation and sensibilities of the parties concerned.

5. The extent to which such conduct offends a public sense of justice
and propriety.

6. The net worth of Don Davis.
[Insert additional instructions if appropriate. See, e.g., PJC 7.13.]

Answer in dollars and cents, if any.

Answer:

COMMENT

When to use. PJC 7.12 is used to submit exemplary damages. It should be
predicated on a finding justifying the award of exemplary damages. See comments
below.

Source of instructions. PJC 7.12 is derived from Tex. Civ. Prac. & Rem. Code
§§ 41.001(5), 41.003(d), (e), 41.011(a); and the supreme court’s March 15, 2011,
effective April 1, 2011, and April 13, 2011, effective April 13, 2011, orders under Tex.
R. Civ. P. 226a.

119

PJC 7.12 THEFT LIABILITY

Actions filed before September 1, 2003. For actions filed before September 1,
2003, see the 2018 edition of this volume for an explanation of the earlier law.

Predicate finding. Section 41.003 of the Civil Practice and Remedies Code
requires a predicate finding before an award of exemplary damages may be made. Tex.
Civ. Prac. & Rem. Code § 41.003. That predicate question for a conversion claim is
found at PJC 7.11. If a defendant has requested a bifurcated trial pursuant to Tex. Civ.
Prac. & Rem. Code § 41.009, the predicate question should be submitted in the first
phase of the trial. By the supreme court's March 15, 2011, effective April 1, 2011, and
April 13, 2011, effective April 13, 2011, orders under Tex. R. Civ. P. 226a, the
supreme court requires unanimity on the exemplary damages question and the applica-
ble liability question in cases governed by Tex. Civ. Prac. & Rem. Code § 41.003(d)
that are filed after September 1, 2003. PJC 7.11 1s conditioned accordingly.

Multiple defendants. There should be a separate question and answer blank for
each defendant against whom exemplary damages are sought. Tex. Civ. Prac. & Rem.
Code 8 41.006; Norton Refrigerated Express, Inc. v. Ritter Bros. Co., 552 S.W.2d 910,
913 (Tex. App.—Texarkana 1977, writ ref'd n.re.). In a case involving multiple
defendants against whom exemplary damages are sought, the following instruction on
unanimity may be substituted:

Answer the following question regarding a defendant only if you
unanimously answered “Yes” to Question [7.11] regarding
that defendant. Otherwise, do not answer the following question
regarding that defendant.

Multiple plaintiffs. For multiple plaintiffs, consideration may be given to an
additional question asking the jury to apportion the exemplary damages among them.
Tex. Prac. & Rem. Code $ 71.010; Burk Royalty Co. v. Walls, 596 S.W.2d 932, 939
(Tex. App.—Fort Worth 1980), aff'd on other grounds, 616 S.W.2d 911 (Tex. 1981).
For an example of submission of apportionment in a single question, see PJC 29.8.

Prejudgment interest not recoverable. Prejudgment interest on exemplary dam-
ages is not recoverable. Tex. Civ. Prac. & Rem. Code $ 41.007.

Bifurcation. No predicating instruction is necessary if the court has granted a
timely motion to bifurcate trial of the amount of punitive damages. See Tex. Civ.
Prac. & Rem. Code § 41.009. If in the first phase of the trial the jury finds facts
establishing a predicate for an award of exemplary damages, then a separate phase
two jury charge should be prepared. In such a phase two jury charge, PJC 7.12 should
be submitted with both PJC 1.3 and 1.4 instructions.

Factors to consider in determining amount of award. The “factors to consider"
listed in PJC 7.12 are from Tex. Civ. Prac. & Rem. Code $ 41.011(a).

Limits on conduct to be considered. When there is a significant risk that a jury
may seek to punish a defendant for a constitutionally improper reason, the Due Pro-

120

THEFT LIABILITY PJC 7.12

cess Clause requires that an additional instruction be given to protect against that risk.
Philip Morris USA v. Williams, 549 U.S. 346, 355-57.

For example, the defendant's lawful out-of-state conduct may be probative on some
Issues in a punitive damages case in certain circumstances. State Farm Mutual Auto-
mobile Insurance Co. v. Campbell, 538 U.S. 408, 422 (2003). When such evidence is
admitted, “[a] jury must be instructed . . . that it may not use evidence of out-of-state
conduct to punish a defendant for action that was lawful in the jurisdiction where it
occurred." Campbell, 538 U.S. at 422.

In addition, evidence that the defendant's conduct risked harm to persons who are
not before the court may be probative in determining the reprehensibility of that con-
duct. But when such evidence is admitted, the jury should be instructed that it may not
punish the defendant for any harm it may have caused to persons who are not parties to
the litigation. Williams, 549 U.S. at 357.

Limitation on amount of recovery. Section 41.008 of the Civil Practice and
Remedies Code limits recovery of exemplary damages. However, these limitations
will not apply in favor of a defendant found to have “knowingly” or “intentionally”
committed conduct described as a felony in specified sections of the Texas Penal
Code. See Tex. Civ. Prac. & Rem. Code $ 41.008(c), (d).

121

PJC 7.13 THEFT LIABILITY

PJC 7.13 Question and Instruction for Imputing Liability for
Exemplary Damages
If you answered “Yes” to Question [7.11], and you inserted a sum
of money in answer to Question [applicable damages question], then

answer the following question. Otherwise, do not answer the following ques-
tion.

QUESTION
Do you find by clear and convincing evidence that the harm to Paul Payne
resulted from malice attributable to ABC Corporation?

“Clear and convincing evidence" means the measure or degree of proof that
produces a firm belief or conviction of the truth of the allegations sought to be
established.

*Malice" means—

l. a specific intent by Don Davis to cause substantial injury to Paul
Payne; or
2. anactoromission by Don Davis,
a. which when viewed objectively from the standpoint of Don
Davis at the time of its occurrence involves an extreme degree
of risk, considering the probability and magnitude of the
potential harm to others; and

b. of which Don Davis has actual, subjective awareness of the
risk involved, but nevertheless proceeds with conscious indif-
ference to the rights, safety, or welfare of others.

You are further instructed that malice may be attributable to ABC Corpora-
tion because of an act by Don Davis if, but only 1£—
[Insert one or more of the following grounds as supported by the evidence.]
1. ABC Corporation authorized the doing and the manner of the act,
Or

2. Don Davis was unfit and ABC Corporation was reckless in employ-
ing him, or

3. Don Davis was employed [as a vice-principal] [in a managerial
capacity] and was acting in the scope of employment, or

122

THEFT LIABILITY PJC 7.13

4. ABC Corporation or a [vice-principal] [manager] of ABC Corpora-
tion ratified or approved the act.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 7.13 may be used if a plaintiff seeks to impute the malice of a
defendant employee to his corporate employer. The grounds listed in this instruction
are alternatives, and any of the listed grounds that are not applicable to or sup-
ported by sufficient evidence in the case should be omitted. Regarding broad-form
submission, see Introduction 4(a). If imputation is not required, see PJC 7.11 and sub-
stitute ABC Corporation for Don Davis.

Source of instruction. The supreme court adopted the doctrine set out in Restate-
ment of Torts § 909 (1979) in King v. McGuff, 234 S.W.2d 403 (Tex. 1950); see also
Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967). Section 909 sets
out four distinct reasons to impute the malice of an employee to a corporate employer.
As the court in Fisher set out:

The rule in Texas is that a principal or master is liable for exemplary or
punitive damages because of the acts of his agent, but only if:

(a) the principal authorized the doing and the manner of the act, or

(b) the agent was unfit and the principal was reckless in employ-
ing him, or

(d) the employer or a manager of the employer ratified or
approved the act.

Fisher, 424 S.W.2d at 630; see also Bennett v. Reynolds, 315 S.W.3d 867, 883-84
(Tex. 2010). In Fort Worth Elevators Co., the court held that the gross negligence of a
“vice-principal” could be imputed to a corporation and listed the elements of “vice-
principal" as set out in the grounds listed in PJC 7.13. Fort Worth Elevators Co. v. Rus-
sell, 70 S.W.2d 397, 406 (Tex. 1934), disapproved on other grounds by Wright v. Gif-
ford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987). The court also discussed “absolute
or nondelegable duties" for which “the corporation itself remains responsible for the
manner of their performance." Fort Worth Elevators Co., 70 S.W.2d at 401.

Definition of “nondelegable or absolute duties." If the evidence on vice-princi-
pal requires the submission of the element that includes the term “nondelegable or
absolute duties," further definitions may be necessary.

123

PJC 7.13 THEFT LIABILITY

Nondelegable and absolute duties of a corporation are (1) the duty to provide rules
and regulations for the safety of employees and to warn them as to the hazards of their
positions or employment, (2) the duty to furnish reasonably safe machinery or instru-
mentalities with which its employees are to labor, (3) the duty to furnish its employees
with a reasonably safe place to work, and (4) the duty to exercise ordinary care to
select careful and competent coemployees. Central Ready Mix Concrete Co. v. Islas,
228 S.W.3d 649, 652 n.10 (Tex. 2007); Fort Worth Elevators Co., 70 S.W.2d at 401.

Caveat. The decision to define nondelegable or absolute duties may need to be
balanced against the consideration that this definition may constitute an impermissible
comment on the weight of the evidence. In any event, only those elements of the defi-
nition raised by the evidence should be submitted.

Punitive damages based on criminal act by another person. Subject to certain
exceptions, a court may not award exemplary damages against a defendant because of
the harmful criminal act of another. See Tex. Civ. Prac. & Rem. Code § 41.005(a), (b).
For causes of action accruing on or after September 1, 1995, an employer may be lia-
ble for punitive damages arising out of a criminal act by an employee but only 1£—

(1) the principal authorized the doing and the manner ofthe act;

(2) the agent was unfit and the principal acted with malice in employing
or retaining him;

(3) the agent was employed in a managerial capacity and was acting in
the scope of employment; or

(4) the employer or a manager of the employer ratified or approved the
act.

Tex. Civ. Prac. & Rem. Code § 41.005(c); see also Bennett, 315 S.W.3d at 883—84.
Definition of “malice.” See PJC 7.11.

[Chapters 8 and 9 are reserved for expansion. ]

124

CHAPTER 10

PJC 10.1

PJC 10.2

PJC 10.3

PJC 10.4

PJC 10.5

PJC 10.6

FJC 10:7

PJC 10.8

PJC 10.9

PJC 10.10

PJC 19.11

PJC 10.12

PJC 10.13

PJC 10.14

AGENCY AND SPECIAL RELATIONSHIPS
EMPLOY CO LP
Borrowed Employee—Liability of Borrowing Employer ......

Borrowed Employee—Lending Employer’s Rebuttal
INSHUCHON: aea ceap aa daba Rene pedea ee enue dene A

Borrowed Employee— Disjunctive Submission of Liability
of Lending or Borrowing Employer .................00 000

Employment as Defense under Workers’ Compensation Act... .
Scope of Employment... 1.2.0.0... 00. c cece eee eee eee
Deviation scesi seese hd ee CR RAO RUE hd ER ed ae
Independent Contractor .......... 0.0 ccc cece eens
Independent Contractor by Written Agreement ..............
Respondeat Superior—Nonemployee...............000e0 0
Joint Enterprise: crer reniri hae dha red eR poa s

Negligent Entrustment—Reckless, Incompetent, or
Unlicensed Driver .......... 00.0 c cee cece ee eee eens

Negligent Entrustment—Defective Vehicle .................

Imputing Gross Negligence to a Corporation................

125

AGENCY AND SPECIAL RELATIONSHIPS PJC 10.1

PJC 10.1 Employee

QUESTION
On the occasion in question, was Don Davis acting as an employee of ABC
Company?

An "employee" is a person in the service of another with the understanding,
express or implied, that such other person has the right to direct the details of
the work and not merely the result to be accomplished.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 10.1 should be used if there is a factual dispute about the
employment element essential to a defendant’s vicarious liability.

Source of definition. For the characteristics of “employee,” as distinguished
from “independent contractor,” see Limestone Products Distribution, Inc. v. Mc-
Namara, 71 S.W.3d 308 (Tex. 2002); Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex.
1964); Restatement (Second) of Agency § 2 (1958). See PJC 10.8 for the definition of
“independent contractor.”

Caveat. For cases involving employment as a defense under the Workers’ Com-
pensation Act (Tex. Lab. Code ch. 401), see PJC 10.5.

127

PJC 10.2 AGENCY AND SPECIAL RELATIONSHIPS

PJC 10.2 Borrowed Employee— Liability of Borrowing Employer

QUESTION

On the occasion in question, was Don Davis acting as a borrowed employee
of XYZ Company?

One who would otherwise be in the general employment of one employer is
a "borrowed employee" of another employer if such other employer or his
agents have the right to direct and control the details of the particular work
inquired about.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use—replaces PJC 10.1. PJC 10.2 should be given if a plaintiff seeks to
impose vicarious liability on a borrowing employer (XYZ Company) for the negligence
of one generally employed by another.

Source of definition. For discussion of the “borrowed employee" (sometimes
called “loaned employee" or “special employee") doctrine, see St. Joseph Hospital v.
Wolff, 94 S.W.3d 513, 537—38 (Tex. 2002); J.A. Robinson Sons, Inc. v. Wigart, 431
S.W.2d 327, 334 (Tex. 1968), overruled on other grounds by Sanchez v. Schindler, 651
S.W.2d 249, 251 (Tex. 1983); Producers Chemical Co. v. McKay, 366 S.W.2d 220,
225-26 (Tex. 1963).

128

AGENCY AND SPECIAL RELATIONSHIPS PJC 10.3

PJC 10.3 Borrowed Employee—Lending Employer's Rebuttal
Instruction

QUESTION

On the occasion in question, was Don Davis acting as an employee of ABC
Company?

An employee ceases to be an employee of his general employer if he
becomes the “borrowed employee" of another. One who would otherwise be in
the general employment of one employer is a borrowed employee of another
employer if such other employer or his agents have the right to direct and con-
trol the details of the particular work inquired about.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use—replaces PJC 10.1. PJC 10.3 should be given if a general
employer (4BC Company) who is claimed to be vicariously liable seeks to rebut the
employment relationship with evidence that the employee was the borrowed employee
of someone else on the occasion in question. See Linden-Alimak, Inc. v. McDonald,
745 S.W.2d 82, 84 (Tex. App.—Fort Worth 1988, writ denied).

129

PJC 10.4 AGENCY AND SPECIAL RELATIONSHIPS

PJC 10.4 Borrowed Employee—Disjunctive Submission of Liability
of Lending or Borrowing Employer

QUESTION

On the occasion in question, was Don Davis acting as an employee of ABC
Company or of XYZ Company?

An employee ceases to be the employee of his general employer if he
becomes the borrowed employee" of another. One who would otherwise be in
the general employment of one employer is a borrowed employee of another
employer if such other employer or his agents have the right to direct and con-
trol the details of the particular work inquired about.

For purposes of this question, the term “employee” includes “borrowed
employee." On the occasion in question, Don Davis could not have been an
employee of both ABC Company and XYZ Company.

Answer “ABC Company" or “XYZ Company."

Answer:

COMMENT

When to use—replaces PJC 10.1. PJC 10.4 should be given only if the plaintiff
sues both the lending and the borrowing employers, contending that one or the other is
vicariously liable for the conduct of an employee or borrowed employee. This form
can be used only in the situation of alternative theories of recovery; otherwise the
question would contain an impermissible inferential rebuttal. Cf Archuleta v. Interna-
tional Insurance Co., 667 S.W.2d 120 (Tex. 1984) (proper to ask about total and partial
incapacity as alternative theories; inquiry about partial incapacity is improper inferen-
tial rebuttal if only total incapacity is claimed).

Source of definition. For discussion of the “borrowed employee” (sometimes
called “loaned employee" or “special employee") doctrine, see St. Joseph Hospital v.
Wolff, 94 S.W.3d 513, 537-38 (Tex. 2002); J.A. Robinson Sons, Inc. v. Wigart, 431
S.W.2d 327, 334 (Tex. 1968), overruled on other grounds by Sanchez v. Schindler, 651
S.W.2d 249, 251 (Tex. 1983); Producers Chemical Co. v. McKay, 366 S.W.2d 220,
225-26 (Tex. 1963).

130

AGENCY AND SPECIAL RELATIONSHIPS PJC 10.5

PJC 10.5 Employment as Defense under Workers? Compensation
Act

QUESTION

On the occasion in question, was Paul Payne acting as an employee of ABC
Company?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 10.5 illustrates how PJC 10.1 may be adapted to submit a
defendant’s claim that a plaintiff was the defendant’s employee and thus is barred by
the exclusivity of the Workers’ Compensation Act, Tex. Lab. Code § 408.001. In that
event, the question would inquire about the plaintiff's rather than the defendant's
employment status, and the definition of “employee” in PJC 10.1 should accompany
the question. If the plaintiff seeks to avoid the exclusivity defense by rebutting the
claim that he was the defendant’s employee with evidence that he was a borrowed
employee of another, an inferential rebuttal instruction, as in PJC 10.3, should also be
included.

Similarly, PJC 10.2 may be adapted to submit a defendant’s claim that a plaintiff
was the defendant’s borrowed employee and thus is barred by the exclusivity of the
Workers’ Compensation Act. In that event, the above question should be reworded so
that the phrase a borrowed employee of XYZ Company replaces the phrase an
employee of ABC Company. Also, the definition of “borrowed employee” in PJC 10.2
should accompany the question.

Temporary employment agency employment. When the plaintiff is an
employee of a temporary employment agency, he may be considered the dual
employee of both the employment agency and the client company if he is working
under the direct supervision of the client company. Wingfoot Enterprises v. Alvarado,
111 S.W.3d 134 (Tex. 2003). To be entitled to claim protections of the exclusive rem-
edy provision of the Workers’ Compensation Act, however, a party must either obtain
or specifically negotiate for and be a named insured on a worker’s compensation insur-
ance policy. Garza v. Exel Logistics, Inc., 161 S.W.3d 473 (Tex. 2005); see also Wing-
foot Enterprises, 111 S.W.3d 134.

Staff leasing agency employment. When the plaintiff is an employee of a
licensed staff leasing company and the staff leasing company procures worker's com-
pensation insurance, both the leasing company and the client company may be entitled

131

PJC 10.5 AGENCY AND SPECIAL RELATIONSHIPS

to the exclusive remedy provisions of the Workers’ Compensation Act. Wingfoot
Enterprises, 111 S.W.3d at 141. However, if the staff leasing company does not obtain
worker's compensation insurance, both the staff leasing company and the client com-
pany may be treated as nonsubscribers. Texas Workers ' Compensation Insurance Fund
v. DEL Industrial, Inc., 35 S.W.3d 591 (Tex. 2000). Note: The Staff Leasing Services
Act was amended in 2013 and is now the Professional Employer Organization Act.
Tex. Lab. Code ch. 91.

Statutory employment. In Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433,
444 (Tex. 2009), the court stated: “We conclude that Entergy qualifies under the Act's
definition as a ‘general contractor’ and, as a statutory employer, is entitled to assert the
exclusive remedy defense. Tex. Lab. Code § 408.001.”

Caveat. The Workers’ Compensation Act contains its own definitions of various
terms, such as “course and scope of employment,” “employee,” and “independent con-
tractor.” See Tex. Lab. Code §§ 401.011(12), 401.012, 406.121(2). If such terms are
relevant to determining employment as a defense under the Act, the practitioner is
advised to consult the Act’s definitions to determine whether the instructions found in
this chapter need to be modified to track the relevant statutory definition.

132

AGENCY AND SPECIAL RELATIONSHIPS PJC 10.6

PJC 10.6 Scope of Employment

QUESTION
On the occasion in question, was Don Davis acting in the scope of Ais
employment?

An employee is acting in the scope of his employment if he is acting in the
furtherance of the business of his employer.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 10.6 inquires whether an alleged employee was acting in the
scope of his employment. Under the principle of respondeat superior, the master is lia-
ble for a servant’s torts only if the servant was acting within the scope of his employ-
ment. See Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567 (Tex. 1972);
Robertson Tank Lines v. Van Cleave, 468 S.W.2d 354 (Tex. 1971); J.C. Penney Co. v.
Oberpriller, 170 S.W.2d 607 (Tex. 1943); Parmlee v. Texas & New Orleans Railroad,
381 S.W.2d 90 (Tex. App.—Tyler 1964, writ ref'd n.r.e.).

When to instruct on scope of authority. Generally, vicarious liability is imposed
only for authorized action in the furtherance of an employer’s business. The element
of general authority, however, is not included in PJC 10.6 because it is usually undis-
puted. If it is disputed, the phrase “and within the scope of the general authority given
him by his employer” should be added at the end of the definition. See Broaddus v.
Long, 138 S.W.2d 1057 (Tex. 1940).

Defense to respondeat superior liability under Dramshop Act or common
law. See PJC 5.6.

133

PJC 10.7 AGENCY AND SPECIAL RELATIONSHIPS

PJC 10.7 Deviation

An employee is not acting within the scope of his employment if he departs
from the furtherance of the employer's business for a purpose of his own not
connected with his employment and has not returned to the place of departure
or to a place he is required to be in the performance of his duties.

COMMENT

When to use—given after definition of “scope.” PJC 10.7 should be used if
there is evidence that a person alleged to be an employee has deviated from the fur-
therance of the employer’s business and is not acting within the scope of his employ-
ment. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007).
Deviation is an inferential rebuttal to the claim that the employee was acting in the
scope of employment, as submitted in PJC 10.6. City of Houston v. Wormley, 623
S.W.2d 692 (Tex. App.—Houston [Ist Dist.] 1981, writ ref'd n.r.e.). For the elements
of “deviation,” see Texas & Pacific Railway v. Hagenloh, 247 S.W.2d 236 (Tex. 1952);
Robert R. Walker, Inc. v. Burgdorf, 244 S.W.2d 506 (Tex. 1951). PJC 10.7 should be
given immediately after the PJC 10.6 definition of “scope of employment."

When to instruct on resuming performance of duties. If the employee has
returned to the place of departure or to a place he is required to be in the performance
of his duties, he still may not have returned to the scope of his employment. In such a
case, the phrase “and resumes the performance of his duties” should be added at the
end of the instruction.

134

AGENCY AND SPECIAL RELATIONSHIPS PJC 10.8

PJC 10.8 Independent Contractor

A person is not acting as an employee if he is acting as an “independent con-
tractor." An independent contractor is a person who, in pursuit of an indepen-
dent business, undertakes to do specific work for another person, using his own
means and methods without submitting himself to the control of such other per-
son with respect to the details of the work, and who represents the will of such
other person only as to the result of his work and not as to the means by which
it is accomplished.

COMMENT

When to use—given after definition of “employee.” PJC 10.8 should be used if
there is evidence that an alleged employee was actually an independent contractor. The
contention that a person is an independent contractor is an inferential rebuttal to the
existence of an employee relationship. PJC 10.8 should be given immediately after the
definition of *employee" in PJC 10.1.

Source of definition. For the definition of “independent contractor," see Indus-
trial Indemnity Exchange v. Southard, 160 S.W.2d 905, 907 (Tex. 1942); see also
Texas A&M University v. Bishop, 156 S.W.3d 580, 584-85 (Tex. 2005). For cases
approving this definition in a charge submission, see Centurion Planning Corp. v.
Seabrook Venture II, 176 S.W.3d 498, 511—12 (Tex. App.—Houston [1st Dist.] 2004,
no pet.), and Weidner v. Sanchez, 14 S.W.3d 353, 376 (Tex. App.—Houston [14th
Dist.] 2000, no pet.). See also PJC 10.1 Comment.

Control. “[I]n the employment context, it is the right of control that commonly
justifies imposing liability on the employer for the actions of the employee. Indeed, it
is the absence of that right of control that commonly distinguishes between an
employee and an independent contractor and negates vicarious liability for the actions
of the latter." St. Joseph Hospital v. Wolff, 94 S.W.3d 513, 542 (Tex. 2002). The gen-
eral rule for independent contractors thus rests on certain tests: (1) the independent
nature of his business; (2) his obligation to furnish necessary tools, supplies, and mate-
rial to perform the job; (3) his right to control the progress of the work, except as to
final results; (4) the time for which he is employed; and (5) the method of payment,
whether by time or by the job. See Industrial Indemnity Exchange, 160 S.W.2d at 907;
see also Texas A&M University, 156 S.W.3d at 584-85 (recognizing same tests as
"factors" to consider in determining status). These tests are not necessarily concurrent
with each other; nor is any one in itself controlling. /ndustrial Indemnity Exchange,
160 S.W.2d at 907. It is therefore unclear whether these “factors” or “tests” are neces-
sarily subsumed within the above instruction or whether one or more of them might
appropriately be the subject of further instruction to the jury.

135

PJC 10.8 AGENCY AND SPECIAL RELATIONSHIPS

Dispute about contract excluding right of control. If there is a dispute about
the conclusiveness of a written contract excluding right of control, see PJC 10.9.

136

AGENCY AND SPECIAL RELATIONSHIPS PJC 10.9

PJC 10.9 Independent Contractor by Written Agreement

A written contract expressly excluding any right of control over the details
of the work is conclusive as to Don Davis's status as an independent contractor
unless—

1. it was a subterfuge from the beginning; or
2. it was persistently ignored; or

3. it was modified by subsequent express or implied agreement of the
parties.

COMMENT

When to use—given after definition of “independent contractor? PJC 10.9
should be given if a written contract tends to establish an independent contractor rela-
tionship but evidence is introduced that, in practice, actual control was persistently
exercised. See Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex. 1964); Elder v. Aetna
Casualty & Surety Co., 236 S.W.2d 611 (Tex. 1951). If this question is raised by the
evidence, this instruction should be given immediately after the definition of “inde-
pendent contractor" in PJC 10.8. For cases involving a property owner's liability to
contractors, subcontractors, or their employees under chapter 95 of the Texas Civil
Practice and Remedies Code, see the current edition of State Bar of Texas, Texas Pat-
tern Jury Charges—Malpractice, Premises & Products PJC 66.14.

137

PJC 10.10 AGENCY AND SPECIAL RELATIONSHIPS

PJC 10.10 Respondeat Superior—Nonemployee

QUESTION

On the occasion in question, was Tim Thomas operating the vehicle in the
furtherance of a mission for the benefit of Don Davis and subject to control by
Don Davis as to the details of the mission?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 10.10 should be given if the respondeat superior doctrine is
raised in a case not involving an ordinary employee. The key elements are (1) benefit
to the defendant and (2) right of control by the defendant. English v. Dhane, 294
S.W.2d 709 (Tex. 1956); Bertrand v. Mutual Motor Co., 38 S.W.2d 417 (Tex. App.—
Eastland 1931, writ ref'd); see also St. Joseph Hospital v. Wolff, 94 S.W.3d 513, 537 &
nn.71—72 (Tex. 2002).

Omit “subject to control as to details.” If the right to control the details of the
mission is undisputed, the phrase “and subject to control by Don Davis as to the details
of the mission" may be omitted.

Liability for child's operation of motor vehicle. As to liability arising from a
child's operation of a vehicle on behalf of his parent, see de Anda v. Blake, 562 S.W.2d
497 (Tex. App.—San Antonio 1978, no writ); Smith v. Cox, 446 S.W.2d 52 (Tex.
App.—Corpus Christi-Edinburg 1969, writ ref'd n.r.e.); and Campbell v. Swinney,
328 S.W.2d 330 (Tex. App.—Dallas 1959, writ ref'd n.r.e.).

138

AGENCY AND SPECIAL RELATIONSHIPS PJC 10.11

PJC 10.11 Joint Enterprise

QUESTION

On the occasion in question, were Paul Payne and Tim Thomas engaged in a
joint enterprise?

A “joint enterprise” exists if the persons concerned have (1) an agreement,
either express or implied, with respect to the enterprise or endeavor; and (2) a
common purpose; and (3) a community of pecuniary interest in [the common
purpose of the enterprise], among the members [of the group]; and (4) an equal
right to a voice in the direction of the enterprise, which gives an equal right of
control.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. “Joint enterprise” liability makes each party thereto the agent of the
other and thereby holds each responsible for the negligent act of the other. Texas
Department of Transportation v. Able, 35 S.W.3d 608, 613 (Tex. 2000); Shoemaker v.
Estate of Whistler, 513 S.W.2d 10, 14 (Tex. 1974). In Shoemaker the court adopted the
formulation of joint enterprise as stated in the Restatement (Second) of Torts § 491
cmt. c (1965):

The elements which are essential to a joint enterprise are commonly stated
to be four: (1) an agreement, express or implied, among the members of the
group; (2) a common purpose to be carried out by the group; (3) a commu-
nity of pecuniary interest in that purpose, among the members; and (4) an
equal right to a voice in the direction of the enterprise, which gives an equal
right of control.

Shoemaker, 513 S.W.2d at 16-17. Before Shoemaker, Texas cases had applied a broad
interpretation of the doctrine of joint enterprise. In analyzing distinctions between
partnership, joint venture, and joint enterprise, the court noted that “in interpreting
joint enterprise, some courts have retained the business character of joint venture as a
requirement, while others have manifested a broader view of the doctrine.” Shoe-
maker, 513 S.W.2d at 16. Shoemaker limited the application of joint enterprise to cases
in which there is a business or pecuniary purpose to the enterprise. Shoemaker, 513
S.W.2d at 17. See also Able, 35 S.W.3d at 613-14.

In the past joint enterprise was often applied in automobile cases to impute the neg-
ligence of the driver of the vehicle to a passenger. W. Page Keeton et al., Prosser and

139

PJC 10.11 AGENCY AND SPECIAL RELATIONSHIPS

Keeton on the Law of Torts § 72, at 517 (Sth ed. 1984). Shoemaker relied heavily on
Prosser and Keeton, which distinguishes joint enterprise from joint venture and
explains joint enterprise as follows:

Except in comparatively rare instances, its application has been in the field
of automobile law, where it has meant that the negligence of the driver of
the vehicle is to be imputed to a passenger riding in it. In relatively few
cases, the passenger has been charged with liability as a defendant to a third
person... . “Joint enterprise" is thus of importance chiefly as a defendant's
doctrine, imputing the negligence of another to the plaintiff.

Shoemaker, 513 S.W.2d at 14.

More recent cases, however, have expanded the use of joint enterprise beyond auto-
motive law. See Able, 35 S.W.3d 608; Blount v. Bordens, Inc., 910 S.W.2d 931 (Tex.
1995); Triplex Communications, Inc. v. Riley, 900 S.W.2d 716 (Tex. 1995).

Element (3) revised. In 2002, the Supreme Court of Texas held (among other
things) in a plurality opinion that (1) the third element in earlier versions of PJC 10.11
was incomplete and erroneous; (2) since Shoemaker, the third element is and has been
whether there is a “community of pecuniary interest in [the common purpose of the
enterprise], among the members [of the group]”; (3) a “common business or pecuniary
interest” does not have the same meaning; (4) a community of pecuniary interest
means an interest shared “without special or distinguishing characteristics” (repeat-
edly citing Ely v. General Motors Corp., 927 S.W.2d 774, 779 (Tex. App.—Texarkana
1996, writ denied)); and (5) because St. Joseph properly objected to the charge, suffi-
ciency of the evidence should be reviewed under the Restatement definition of “joint
enterprise" adopted in Shoemaker. St. Joseph Hospital v. Wolff, 94 S.W.3d 513, 525-
34 (Tex. 2002), rev’g 999 S. W.2d 579 (Tex. App.—Austin 1999).

Distinguished from joint venture. Joint enterprise differs from the relationship
contemplated under “joint venture" law. A joint venture is contractual and “must be
based upon an agreement, either express or implied." Coastal Plains Development
Corp. v. Micrea, Inc., 572 S.W.2d 285, 287 (Tex. 1978). A joint venture must be based
on an agreement that has all the following elements:

l. acommunity of interest in the venture,

2. anagreement to share profits,

3. anexpress agreement to share losses, and

4. a mutual right of control or management of the venture.

Ayco Development Corp. v. G.E.T. Service Co., 616 S.W.2d 184, 186 (Tex. 1981);
Coastal Plains, 572 S.W.2d at 287; Taylor v. GWR Operating Co., 820 S.W.2d 908,
911 (Tex. App.—Houston [1st Dist.] 1991, writ denied). The absence of any one of
these elements precludes a finding of a joint venture as a matter of law. State v. Hous-

140

AGENCY AND SPECIAL RELATIONSHIPS PJC 10.11

ton Lighting & Power Co., 609 S.W.2d 263, 268 (Tex. App.—Corpus Christi-Edin-
burg 1980, writ ref'd n.r.e.); see also Coastal Plains, 572 S.W.2d at 288.

141

PJC 10.12 AGENCY AND SPECIAL RELATIONSHIPS

PJC 10.12 Negligent Entrustment—Reckless, Incompetent,
or Unlicensed Driver

As to Edna Entrustor, “negligence” means entrusting a vehicle to a reckless
driver if the entrustor knew or should have known that the driver was reckless.
Such negligence is a proximate cause of an [injury] [occurrence] if the negli-
gence of the driver to whom the vehicle was entrusted is a proximate cause of
the [injury] [occurrence].

QUESTION

Did the negligence, if any, of the persons named below proximately cause
the [injury] [occurrence] in question?

Answer “Yes” or “No” for each of the following:

Answer the question as to Edna Entrustor only if you have answered “Yes”
as to David Driver.

1. David Driver

2. Edna Entrustor

3. Paul Payne

COMMENT

When to use. PJC 10.12 submits the common-law doctrine of negligent entrust-
ment to a reckless driver. In an appropriate case, the words incompetent, reckless or
incompetent, or unlicensed should be substituted for reckless. Negligent entrustment
requires (1) entrustment of a vehicle by the owner (2) to an unlicensed, incompetent,
or reckless driver (3) that at the time of the entrustment the owner knew or should have
known to be unlicensed, incompetent, or reckless; and (4) the driver's negligence on
the occasion in question (5) proximately caused the accident. 4Front Engineered Solu-
tions, Inc. v. Rosales, 505 S.W.3d 905, 909 (Tex. 2016); Goodyear Tire & Rubber Co.
v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007); Williams v. Steves Industries, Inc., 699
S.W.2d 570 (Tex. 1985), superseded by statute on other grounds as stated in Transpor-
tation Insurance Co. v. Moriel, 879 S.W.2d 10, 20 n.11 (Tex. 1994). The doctrine of
negligent entrustment may be applied to tangible property other than motor vehicles.
4Front Engineered Solutions, Inc., 505 S.W.3d at 909 n.5 (addressing entrustment of
forklift and listing other examples of tangible personal property subject to entrustment
including, e.g., firearms).

142

AGENCY AND SPECIAL RELATIONSHIPS PJC 10.12

Note that PJC 10.12 consists of two parts—an instruction, to be given immediately
after the definition of "negligence," and a broad-form question.

Statutory standard for unlicensed drivers. “A person may not authorize or
knowingly permit a motor vehicle owned by or under the control of the person to be
operated on a highway by any person in violation of this chapter." Tex. Transp. Code
§ 521.458(b). “This chapter" prohibits, among other things, a person, unless expressly
exempted under chapter 521, from “operat[ing] a motor vehicle on a highway in this
state unless that person holds a driver's license issued under this chapter." Tex. Transp.
Code § 521.021. Where a statute requires a driver to be legally licensed to operate a
vehicle, then permitting the driver to operate it without a license would constitute
negligence per se. 4Front Engineered Solutions, Inc., 505 S.W.3d at 911 (citing Mundy
v. Pirie-Slaughter Motor Co., 206 S.W.2d 587, 589—90 (Tex. 1947)). See PJC 5.1 com-
ment, “Two types of negligence per se standards."

Beware, however, that “[t]he reference to an unlicensed driver arises from cases
alleging negligent entrustment of an automobile, and is based on the fact that Texas
statutes require all drivers to be licensed and prohibit an owner from knowingly per-
mitting an unlicensed driver to operate the owner's vehicle." 4Front Engineered Solu-
tions, Inc., 505 S.W.3d at 909 n.6 (citing Mundy, 206 S. W.2d at 589—90)). If Texas law
does not require a license to operate a particular piece of equipment (e.g., a forklift) or
prohibit an owner from permitting an unlicensed person from operating a particular
piece of equipment, the lack of a license would be inapplicable to the negligent
entrustment issue. See 4Front Engineered Solutions, Inc., 505 S.W.3d at 909 n.6 (cit-
ing Mundy, 206 S.W.2d at 589—90)).

Proximate cause of entrustor. “For entrustment to be a proximate cause, the
defendant entrustor should be shown to be reasonably able to anticipate that an injury
would result from a natural and probable consequence of the entrustment." Schneider
v. Esperanza Transmission Co., 744 S.W.2d 595 (Tex. 1987) (not foreseeable that
employee would become intoxicated and allow others to drive company vehicle,
where employee's only record was of speeding tickets); see also Always Auto Group,
Ltd. v. Walters, 530 S.W.3d 147, 148 (Tex. 2017) (not foreseeable that driver, who was
visibly intoxicated when he was provided loaner vehicle, would get drunk eighteen
days later and cause a collision); Hanson v Green, 339 S.W.2d 381, 383 (Tex. App.—
Texarkana 1960, writ ref'd) (finding negligence, if any, of father in entrusting car to
unlicensed, minor daughter was not a proximate cause of plaintiff's injuries and dam-
ages, where—unbeknownst to father—daughter entrusted car to unlicensed, minor
friend).

Thus, negligent entrustment is considered a proximate cause of the collision if the
risk that caused the entrustment to be negligent caused the accident at issue. TXI
Transportation Co. v. Hughes, 306 S.W.3d 230, 240-41 (Tex. 2010) (neither driver's
status as illegal alien nor fact that he had used fake Social Security number to obtain
his commercial driver's license was proximate cause of accident); see also Endeavor

143

PJC 10.12 AGENCY AND SPECIAL RELATIONSHIPS

Energy Resources, L.P. v. Cuevas, 593 S.W.3d 307, 311 (Tex. 2019). Concerning
whether the presumption of proximate cause set out in the second sentence of this
instruction should apply in a double-entrustment case, see Schneider, 744 S.W.2d 595
(where risk that caused entrustment to be negligent did not cause collision, entrust-
ment was not proximate cause of collision).

If only entrustor is sued. If only the entrustor is sued, the driver's conduct would
not be inquired about, and the predicating instruction, *Answer the question as to
Edna Entrustor only if you have answered ‘Yes’ as to David Driver,” should be omit-
ted. It is sufficient that the instruction state that 1f the driver's negligence proximately
caused the collision, the entrustor's negligence is considered the proximate cause of
the collision.

Caveat when both entrustor and entrustee are joined. Whether the entrustor
should be submitted in the comparative causation question is uncertain. See Bedford v.
Moore, 166 S.W.3d 454 (Tex. App.—Fort Worth 2005, no pet.); Rosell v. Central West
Motor Stages, Inc., 89 S.W.3d 643 (Tex. App.— Dallas 2002, pet. denied); Loom Craft
Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431 (Tex. App.—Texarkana 1992, no writ).
Also see Justice Jefferson's dissent in FEP. Operating Partners, L.P. v. Duenez, 237
S.W.3d 680, 694 (Tex. 2007).

Modify “negligence” definition to refer only to parties other than entrustor.
The basic definition of “negligence,” PJC 2.1, which precedes this instruction, should
be modified by adding the phrase “when used with respect to the conduct of [include
names of parties other than the entrustor's|" after the first word, "negligence," to
inform the jury that the more specific definition of negligence in PJC 10.12 applies
only to the entrustor. See PJC 2.1 comment, “Modify if ‘ordinary care’ not applicable
to all.”

Duty to investigate. Under the common law, an employer owes a duty to the gen-
eral public to ascertain the qualifications and competence of the employees and inde-
pendent contractors it hires, "especially when the employees are engaged in
occupations that require skill or experience and that could be hazardous to the safety
of others." Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App.—Fort Worth
2002, no pet.); see also Martinez v. Hays Construction, Inc., 355 S.W.3d 170, 180
(Tex. App.—Houston [1st Dist.] 2011, pet. denied) (negligent hiring case), disap-
proved of on other grounds by Gonzalez v. Ramirez, 463 S.W.3d 499 (Tex. 2015) (to
the extent Martinez holds that employer was liable as a motor carrier under federal
regulations). If employment requires driving a vehicle, the employer has an affirma-
tive duty to investigate the employee or independent contractor's competency to drive.
Martinez, 355 S.W.3d at 180 (citing Mireles v. Ashley, 201 S.W.3d 779, 782-83 (Tex.
App.—Amarillo 2006, no pet.), and Morris, 78 S.W.3d at 49)).

An employer is also required by state statute to investigate a driver's driving record
with the Department of Public Safety and to verify that he has a valid license before

144

AGENCY AND SPECIAL RELATIONSHIPS PJC 10.12

entrusting a vehicle to him to transport persons or property. Tex. Transp. Code
§ 521.459(a); see North Houston Pole Line Corp. v. McAllister, 667 S.W.2d 829, 835
(Tex. App.—Houston [14th Dist.] 1983, no writ) (former article 6687b, section 37,
imposed “duty to know"). In the context of a commercial motor vehicle, the Federal
Motor Carrier Safety Regulations require an employer to, among many other things
and subject to certain limited exemptions, investigate each employed driver's motor
vehicle record and Department of Transportation-regulated employment history
during the preceding three years. See 49 C.F.R. pt. 391, subpt. C ("Background and
Character"); 49 C.F.R. pt. 391, subpt. G (“Limited Exemptions”).

Use of *injury" or *occurrence." See discussion at PJC 4.1 Comment.

145

PJC 10.13 AGENCY AND SPECIAL RELATIONSHIPS

PJC 10.13 Negligent Entrustment—Defective Vehicle

As to Edna Entrustor, “negligence” means entrusting a vehicle to another if
the entrustor knew or should have known that the vehicle was defective.

QUESTION

Did the negligence, if any, of those named below proximately cause the
occurrence in question?
Answer “Yes” or “No” for each of the following:
1. David Driver

2. Edna Entrustor

3. Paul Payne

COMMENT

When to use. PJC 10.13 submits the common-law doctrine of negligent entrust-
ment of a defective vehicle. See Russell Construction Co. v. Ponder, 186 S.W.2d 233
(Tex. 1945); Sturtevant v. Pagel, 130 S.W.2d 1017 (Tex. 1939). Like PJC 10.12, PJC
10.13 consists of two parts, an instruction and a question. This instruction should be
given immediately after the definition of "negligence."

Owner must be proximate cause of collision. Unlike the doctrine of negligent
entrustment to a reckless, incompetent, or unlicensed driver (see PJC 10.12), the
entrustor of a defective vehicle must be found to be the proximate cause of the colli-
sion.

If only owner is sued. If only the vehicle's owner (Edna Entrustor) is sued, the
negligence of the driver (David Driver) should not be submitted to the jury.

Modify “negligence” definition to refer only to parties other than entrustor.
The basic definition of “negligence,” PJC 2.1, which precedes this instruction, should
be modified by adding the phrase “when used with respect to the conduct of [include
names of parties other than the entrustor's|" after the first word, "negligence," to
inform the jury that the more specific definition of negligence in PJC 10.13 applies
only to the entrustor. See PJC 2.1 comment, “Modify if ‘ordinary care’ not applicable
to all.”

146

AGENCY AND SPECIAL RELATIONSHIPS PJC 10.14

PJC 10.14 Imputing Gross Negligence to a Corporation

Answer the following question regarding ABC Corporation only if you
unanimously answered “Yes” to Question [applicable liability ques-
tion] regarding ABC Corporation. Otherwise, do not answer the following
question regarding ABC Corporation.

QUESTION

Do you find by clear and convincing evidence that the harm to Paul Payne
resulted from gross negligence attributable to ABC Corporation?

"Clear and convincing evidence" means the measure or degree of proof that
produces a firm belief or conviction of the truth of the allegations sought to be
established.

“Gross negligence" means an act or omission by Don Davis,

2. of which Don Davis has actual, subjective awareness of the risk
involved, but nevertheless proceeds with conscious indifference to the rights,
safety, or welfare of others.

You are further instructed that ABC Corporation may be grossly negligent
because of an act by Don Davis if, but only 1£—

[Insert one or more of the following grounds as supported by the evidence.]

1. ABC Corporation authorized the doing and the manner of the act,
or

2. Don Davis was unfit and ABC Corporation was reckless in employ-
ing him, or

3. Don Davis was employed [as a vice-principal] [in a managerial
capacity] and was acting in the scope of employment, or

147

PJC 10.14 AGENCY AND SPECIAL RELATIONSHIPS

4. ABC Corporation or a [vice-principal] [manager] of ABC Corpora-
tion ratified or approved the act.

[Include one or more of the following definitions if the grounds include
an element in which the term “vice-principal,” “manager,” or
"managerial capacity" is used. Only the applicable elements of

vice-principal, manager, or managerial capacity should be
included in the definitions as submitted to the jury.]
A person is a “vice-principal” if—
1. that person is a corporate officer; or

2. that person has authority to employ, direct, and discharge an
employee of ABC Corporation; or

3. that person is engaged in the performance of nondelegable or abso-
lute duties of ABC Corporation; or

4. ABC Corporation has confided to that person the management of
the whole or a department or division of the business of ABC Corporation.

A person is a manager or is employed in a managerial capacity if—

l. that person has authority to employ, direct, and discharge an
employee of ABC Corporation; or

2. ABC Corporation has confided to that person the management of
the whole or a department or division of the business of ABC Corporation.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 10.14 may be used if a plaintiff seeks to impute the gross neg-
ligence of a defendant employee to his corporate employer. The grounds listed in this
instruction are alternatives, and any of the listed grounds that are not applicable to or
supported by sufficient evidence in the case should be omitted. Regarding broad-form
submission, see Introduction 4(a). If imputation 1s not required, see PJC 4.2.

Source of instruction. The supreme court adopted the doctrine set out in Restate-
ment of Torts $ 909 (1939) in King v. McGuff, 234 S.W.2d 403 (Tex. 1950); see also
Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967). Section 909 sets
out four distinct reasons to impute the gross negligence or malice of an employee to a
corporate employer. As the court in Fisher set out:

148

AGENCY AND SPECIAL RELATIONSHIPS PJC 10.14

The rule in Texas is that a principal or master is liable for exemplary or
punitive damages because of the acts of his agent, but only if:

(a) the principal authorized the doing and the manner of the act, or

(b) the agent was unfit and the principal was reckless in employ-
ing him, or

(d) the employer or a manager of the employer ratified or
approved the act.

Fisher, 424 S.W.2d at 630; see also Bennett v. Reynolds, 315 S.W.3d 867, 883-84
(Tex. 2010). In Fort Worth Elevators Co., the court held that the gross negligence of a
*vice-principal" could be imputed to a corporation and listed the elements of “vice-
principal" as set out in the definitions in PJC 10.14. Fort Worth Elevators Co. v. Rus-
sell, 70 S.W.2d 397, 406 (Tex. 1934), disapproved on other grounds by Wright v. Gif-
ford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987). The court also discussed “absolute
or nondelegable duties" for which “the corporation itself remains responsible for the
manner of their performance." Fort Worth Elevators Co., 70 S.W.2d at 401.

Definition of nondelegable or absolute duties. If the evidence on vice-principal
requires the submission of the element that includes the term “nondelegable or abso-
lute duties,” further definitions may be necessary.

Punitive damages based on criminal act by another person. Subject to certain
exceptions, a court may not award exemplary damages against a defendant because of
the harmful criminal act of another. See Tex. Civ. Prac. & Rem. Code $ 41.005(a), (b).
An employer may be liable for punitive damages arising out of a criminal act by an
employee but only if—

(1) the principal authorized the doing and the manner of the act;

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PJC 10.14 AGENCY AND SPECIAL RELATIONSHIPS

(2) the agent was unfit and the principal acted with malice in employ-
ing or retaining him;

(3) the agent was employed in a managerial capacity and was acting
in the scope of employment; or

(4) the employer or a manager of the employer ratified or approved
the act.

Tex. Civ. Prac. & Rem. Code 8 41.005(c). See also Bennett, 315 S.W.3d at 883-84.
Source of definition of “gross negligence.” See PJC 4.2 and Comment.

Unanimity instructions. PJC 10.14 is for use in all cases filed on or after Sep-
tember 1, 2003. Tex. R. Civ. P. 226a. Please note that in a case with only one defen-
dant, the any part of language may be unnecessary.

Actions filed before September 1, 2003. For actions filed before September 1,
2003, see the 2018 edition of this volume for an explanation of the earlier law.

150

CHAPTER 11

PJC 11.1

PJC 11.2

PJC 11.3

PJC 11.4

PMO 11.3

PJC 11.6

PJC 11.7

PJC 11.8

PJC 11.9

TRESPASS
Trespass Actions Generally—When to Apply (Comment) .....
Trespass to Real Property—Basic Question.................

Damages Recoverable from Trespass to Real Property
(Corment)-.. sre Een dea ewan p dd acer’

Intentional Trespass—Question and Instruction..............

Permanent vs. Temporary Injury (Frequency and Duration)—
Questions «ese da edo Roe RRRDR E ER RP nap dane redes

Cost to Repair, Fix, or Restore (Temporary Injury to
Property)—Question and Instructions. ................0200-

Diminution in Market Value (Permanent Injury to
Property)—Questions and Instructions.................000-

Personal Injury Damages Resulting from Trespass—
Question and Instructions ............ 000 cc cece eee ee

Personal Injury Damages Resulting from Trespass
Committed with Malice—Questions and Instructions.........

151

TRESPASS PJC 11.1

PJC 11.1 Trespass Actions Generally—When to Apply (Comment)

Definitions. “Trespass” means an entry on the property of another without having
consent of the owner. The term “trespass” is used frequently within different contexts.
This chapter deals with civil trespass. Another volume addresses oil-and-gas-related
trespass. See the current edition of State Bar of Texas, Texas Pattern Jury Charges—
Oil & Gas.

In a civil trespass action, unauthorized entry on the property of another without hav-
ing consent of the property owner constitutes trespass. Trespass can also occur by
causing or permitting a thing to cross the property boundary of another without that
owner's consent. In the context of oil and gas, a defendant's conduct is affected by fac-
tors such as oil production and the mineral estate, and there are different types of
defenses and damages recoverable. Texas law also includes criminal trespass. That
offense is subject to an action brought by a prosecuting entity for violations of specific
ordinances and laws. Criminal trespass 1s not addressed in this volume and remains
within the purview of criminal law and specific criminal jury charges. See the appen-
dix to this volume for more information about the Texas Criminal Pattern Jury
Charges series.

Practitioners should apply this chapter 1f the claim involves an entry on the property
of another without having consent of the owner and does not involve oil and gas. For
other types of trespass, consult the following:

1. Ifthe claim involves the removal of or interference with an oil and gas
lease or its production, see chapters 302 and 313 in the current edition of State Bar
of Texas, Texas Pattern Jury Charges—Oil & Gas.

2. If the claim involves the legal duties owed to a “trespasser” by a land-
owner, see PJC 66.9 in the current edition of State Bar of Texas, Texas Pattern Jury
Charges—Malpractice, Premises & Products.

3. If the alleged conduct involves a crime or is being prosecuted under a
Texas criminal statute, use the applicable definition from the Texas Penal Code or
applicable statute. See also the current edition of State Bar of Texas, Texas Criminal
Pattern Jury Charges—Crimes against Persons & Property.

4. Ifthe alleged conduct involves a nuisance, the practitioner should consult
the nuisance instructions in chapter 12 of this volume.

153

PJC 11.2 TRESPASS

PJC 11.2 Trespass to Real Property—Basic Question

QUESTION

Did Don Davis trespass on Paul Payne's property?

"Trespass" means an entry on the property of another without having con-
sent or authorization of the owner. To constitute trespass, entry upon another's
property need not be in person, but may be made by causing or permitting a
thing to cross the boundary of the property.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 11.2 should be used for civil trespass claims. See PJC 11.1 on
when to use this question as opposed to other causes of action that sound in trespass.

Source of definition. Trespass to real property is an unauthorized entry onto the
land of another, and may occur when one enters—or causes something to enter—
another's property. PJC 11.2 is derived from Environmental Processing Systems, L.C.
v. FPL Farming, Ltd., 457 S.W.3d 414, 425 (Tex. 2015), and Barnes v. Mathis, 353
S.W.3d 760, 764 (Tex. 2011) (per curiam); see Coastal Oil & Gas Corp. v. Garza
Energy Trust, 268 S.W.3d 1, 11-12 nn. 29, 36 (Tex. 2008) (stating that “every unau-
thorized entry upon land of another is a trespass even if no damage is done or injury is
slight"); see also Gregg v. Delhi-Taylor Oil Corp., 344 S.W.2d 411, 416 (Tex. 1961)
(entry on another's land need not be in person but may be made by causing or permit-
ting a thing to cross the boundary at issue).

Elements of trespass. The three elements of a trespass action can be character-
ized as follows: (1) entry; (2) onto the property of another; and (3) without the prop-
erty owner’s consent or authorization. Environmental Processing Systems, L.C., 457
S.W.3d at 419. The burden is on the plaintiff to prove lack of consent. Environmental
Processing Systems, L.C., 457 S.W.3d at 419.

Intent is objectively measured. The plaintiff need only prove interference with
the right of possession of real property; the only relevant intent is that of the actor to
enter the property. Trinity Universal Insurance Co. v. Cowan, 945 S.W.2d 819, 827
(Tex. 1997). The actor’s subjective intent or awareness of the property's ownership is
irrelevant. Trinity Universal Insurance Co., 945 S.W.2d at 819.

154

TRESPASS PJC 11.2

State-issued permit not a defense. A state-issued permit does not shield the per-
mit holder from civil tort liability for trespass. FPL Farming, Ltd. v. Environmental
Processing Systems, L.C., 351 S. W.3d 306, 310—11, 314 (Tex. 2011).

Liability for pollution trespass. The mere migration of airborne particulates
across one's property can constitute an actionable trespass. See Coastal Oil & Gas
Corp., 268 S.W.3d at 21-22. However, claims for trespass concerning air particulates
and emissions may be considered a toxic tort claim requiring Havner-like require-
ments for proof. See Cerny v. Marathon Oil Corp., 480 S.W.3d 612, 621-22 (Tex.
App.— San Antonio 2015, pet. filed) (discussing Merrell Dow Pharmaceuticals, Inc. v.
Havner, 953 S.W.2d 706 (Tex. 1997)). Such claims may also be affected by the Texas
Civil Practice and Remedies Code, which limits liability for trespass by an “air con-
taminant" not produced by a natural process. See Tex. Civ. Prac. & Rem. Code
§ 75.002(h). The Committee expresses no opinion about whether Havner standards
would apply to trespass claims.

Trespass related to oil and gas and production damages. Trespass in the con-
text of oil and gas law, including distinct measures of damages, is treated in the current
edition of State Bar of Texas, Texas Pattern Jury Charges—Oil & Gas chs. 302 & 313.

Criminal trespass. Trespass in a criminal action involves different requirements
and elements. Practitioners should refer to the current edition of State Bar of Texas,
Texas Criminal Pattern Jury Charges—Crimes against Persons & Property and appli-
cable sections of the Texas Penal Code.

Trespass and nuisance not exclusive. The same act may constitute both a nui-
sance and a trespass, because the trespass may interfere with a property owner's right
to enjoy his or her property with or without substantial interference. See Allen v. Vir-
ginia Hill Water Supply Corp., 609 S.W.2d 633, 636 (Tex. App.— Tyler 1980, no writ).

Trespass to try title. Trespass and trespass to try title are not mutually exclusive
and can be brought as separate claims in the same action. Coinmach Corp. v. Aspen-
wood Apartment Corp., 417 S.W.3d 909, 927 (Tex. 2013). An action for trespass to try
title involves a determination of which party has superior title to a piece of property.
Coinmach Corp., 417 S.W.3d at 921; Tex. Prop. Code § 22.001. Damages available in
a trespass-to-try-title action include lost rents and profits, damages for use and occupa-
tion of the premises, and damages for any special injury to the property. See Coinmach
Corp., 417 S.W.3d at 921.

155

PJC 11.3 TRESPASS

PJC 11.3 Damages Recoverable from Trespass to Real Property
(Comment)

Both property damages and personal injury damages are recoverable in an action
for trespass to real property.

The types of property damages recoverable in a trespass action depend on whether
the injury to the property is permanent or temporary. Whether damages are available
for future or only past injuries is determined by whether the injury is permanent or
temporary. Schneider National Carriers, Inc. v. Bates, 147 S.W.3d 264, 275—76 (Tex.
2004).

The concepts of permanent and temporary injuries are mutually exclusive, and
damages for both may not be recovered in the same action. Schneider National Carri-
ers, Inc., 147 S.W.3d at 275—76. For an exception to the general rule that damages for
permanent and temporary injuries may not be recovered in the same action, see Park-
way Co. v. Woodruff, 901 S.W.2d 434, 441 (Tex. 1995), and Ludt v. McCollum, 762
S.W.2d 575, 576 (Tex. 1988) (per curiam). An injury to real property is considered
permanent if (1) the property cannot be repaired, fixed, or restored, or (2) even though
the injury can be repaired, fixed, or restored, it is substantially certain that the injury
will repeatedly, continually, and regularly recur, such that future injury can be reason-
ably evaluated. Gilbert Wheeler, Inc. v. Enbridge Pipelines (East Texas), L.P., 449
S.W.3d 474, 480 (Tex. 2014). An injury to real property is considered temporary if (1)
the property can be repaired, fixed, or restored and (2) any anticipated recurrence
would be only occasional, irregular, intermittent, and not reasonably predictable, such
that future injury could not be estimated with reasonable certainty. Gilbert Wheeler,
Inc., 449 S.W.3d at 480. Generally, the proper measure of damages in cases involving
temporary injuries is the cost of restoration (or replacement) plus loss of use while res-
toration and repairs are ongoing. Gilbert Wheeler, Inc., 449 S.W.3d at 481. Loss of fair
market value is the proper measure of damages in a case involving permanent injury.
Gilbert Wheeler, Inc., 449 S.W.3d at 481. Application of the temporary-versus-perma-
nent distinction in cases involving injury to real property is not limited to causes of
action that sound in tort rather than contract. Gilbert Wheeler, Inc., 449 S.W.3d at 479.

Whether a physical injury to real property is permanent or temporary is a question
of law to be decided by the court. Gilbert Wheeler, Inc., 449 S.W.3d at 481. However,
questions regarding the facts that underlie the court’s legal determination, including
the frequency, extent, and duration of the injury and the resulting amount of damages,
must be resolved by the jury on proper request. Gilbert Wheeler, Inc., 449 S.W.3d at
481. If the cost of repairing a temporary injury so disproportionately exceeds the
resulting diminution in the property’s market value that restoration is no longer eco-
nomically feasible, the temporary injury is deemed permanent as a matter of law and
damages are awarded for loss in fair market value. Gilbert Wheeler, Inc., 449 S.W.3d
at 481.

156

TRESPASS PJC 11.3

In addition to compensation for permanent or temporary injury to real property, and
in addition to the value of minerals produced in connection with a trespass (see the
current edition of State Bar of Texas, Texas Pattern Jury Charges—Oil & Gas PJC
302.4, 313.3, and 313.6—313.8), a plaintiff asserting physical injury to real property
may also be entitled to recover for personal injuries and harm to personal property.
Schneider National Carriers, Inc., 147 S.W.3d at 276 n.53; Vestal v. Gulf Oil Corp.,
235 S.W.2d 440, 441-42 (Tex. 1951); Vann v. Bowie Sewerage Co., 90 S.W.2d 561,
563 (Tex. Comm"n App. 1936); City of Uvalde v. Crow, 713 S.W.2d 154, 158—59 (Tex.
App.—Texarkana 1986, writ ref' d n.r.e.).

The types of personal injury damages that are recoverable in a trespass action
depend on whether a trespass was committed negligently, intentionally, or maliciously.
For example, because mental anguish and punitive damages are recoverable if a tres-
pass was intentional, a separate question on whether the property damage at issue was
caused intentionally may be needed. Coinmach Corp. v. Aspenwood Apartment Corp.,
417 S.W.3d 909, 922 (Tex. 2013); City of Tyler v. Likes, 962 S.W.2d 489, 497 (Tex.
1997). Trespass cases may include claims of both negligent as well as intentional con-
duct.

157

PJC 11.4 TRESPASS

PJC 11.4 Intentional Trespass—Question and Instruction

QUESTION

Was Don Davis's trespass intentional?

“Intentional” means that Don Davis acted with intent with respect to the
nature of his conduct or to a result of his conduct when it was the conscious
objective or desire to engage in the conduct or the result.

Answer “Yes” or “No.”
Answer:

COMMENT

When to use. Please note that PJC 11.4 should not be used unless there has been
an affirmative finding of trespass.

158

TRESPASS PJC 11.5

PJC 11.5 Permanent vs. Temporary Injury (Frequency and
Duration)—Questions

QUESTION

Is the property capable of being repaired, fixed, or restored?
Answer “Yes” or “No.”

Answer:

QUESTION

If you answered the above question “Yes,” then answer the following ques-
tion. Otherwise, do not answer the following question.

Is the injury—

1. ofsucha character as to recur repeatedly, continually, and regularly,
such that future injury can be reasonably evaluated?

Or—

2. of such a character that any anticipated recurrence would be only
occasional, irregular, intermittent, and not reasonably predictable, such that
future injury could not be estimated with reasonable certainty?

Answer “1” or “2.”

Answer:

COMMENT

When to use. PJC 11.5 is appropriate when an injury to real property has been
established and the frequency, extent, or duration of the injury is disputed and must be
resolved before the court may classify the injury as either permanent or temporary as a
matter of law. Gilbert Wheeler, Inc. v. Enbridge Pipelines (East Texas), L.P., 449
S.W.3d 474, 478 (Tex. 2014) (quoting Schneider National Carriers, Inc. v. Bates, 147
S.W.3d 264 (Tex. 2004)). When the facts are disputed and must be resolved to cor-
rectly evaluate the nature of the injury, the court, upon proper request, must present the
Issue to the jury. Gilbert Wheeler, Inc., 449 S.W.3d at 480. Please note that PJC 11.5
should be predicated on an affirmative finding of trespass.

Economic feasibility exception. Whether a physical injury to real property is
permanent or temporary is a question of law to be decided by the court. Gilbert
Wheeler, Inc., 449 S.W.3d at 481. However, questions regarding the facts that underlie

159

PJC 11.5 TRESPASS

the court's legal determination, including the frequency, extent, and duration of the
injury and the resulting amount of damages, must be resolved by the jury upon proper
request. Gilbert Wheeler, Inc., 449 S.W.3d at 481. If the cost of repairing a temporary
injury so disproportionately exceeds the resulting diminution in the property's market
value that restoration is no longer economically feasible, the temporary injury is
deemed permanent as a matter of law and damages are awarded for loss in fair market
value. Gilbert Wheeler, Inc., 449 S.W.3d at 481.

160

TRESPASS PJC 11.6

PJC 11.6 Cost to Repair, Fix, or Restore (Temporary Injury to
Property)—Question and Instructions

QUESTION

If you answered “Yes” to Question [question finding temporary
injury], then answer the following question. Otherwise, do not answer the fol-
lowing question.

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne for the property damage, if any, resulting from the tres-
pass?

Consider the elements of damages listed below and none other. Consider
each element separately. Do not award any sum of money on any element if
you have otherwise, under some other element, awarded a sum of money for
the same loss. That is, do not compensate twice for the same loss, if any. Do not
include interest on any amount of damages you find. Answer element 4 only if
you found the trespass was intentional.

Answer separately in dollars and cents for damages, if any.

1. The reasonable and necessary costs to repair, fix, or restore Paul
Payne's property to the condition immediately preceding the injury.

Answer:

2. The reasonable and necessary costs to compensate Paul Payne for
his loss of use of the property that was sustained in the past.

Answer:

3. The amount that, in reasonable probability, will be sustained in the
future for Paul Payne’s loss of the use of the property until the property can
be repaired, fixed, or restored.

Answer:

4. The amount necessary to compensate Paul Payne for mental
anguish.

Answer:

161

PJC 11.6 TRESPASS

COMMENT

When to use. PJC 11.6 submits the measure of damages recoverable for tempo-
rary injury to property. See Gilbert Wheeler, Inc. v. Enbridge Pipelines (East Texas),
L.P., 449 S.W.3d 474, 481 (Tex. 2014); Schneider National Carriers, Inc. v. Bates,
147 S.W.3d 264, 276 (Tex. 2004).

Mental anguish add-on. Mental anguish damages should be submitted as part of
PJC 11.6 only when the trespass has been found to be intentional. This is because men-
tal anguish damages are recoverable in actions for trespass to real property, but Texas
courts have required a showing of deliberate and willful trespass and actual property
damage before awarding damages for emotional distress or mental anguish. City of
Tyler v. Likes, 962 S.W.2d 489, 497—500 (Tex. 1997).

Source of question and instructions. PJC 11.6 is derived from Coinmach Corp.
v. Aspenwood Apartment Corp., 417 S.W.3d 909, 921 (Tex. 2013), and Schneider
National Carriers, Inc., 147 S.W.3d at 276.

Stigma damages. For a discussion of whether stigma damages are available in
cases involving temporary injury to real property, i.e., damages representing the mar-
ket's perception of a decrease in a property's value that may continue to exist after an
injury to real property has been fully repaired or remediated, see Houston Unlimited,
Inc. v. Mel Acres Ranch, 443 S.W.3d 820, 824 (Tex. 2014) (describing this effect as
"damage to the reputation of the realty" from a prior injury).

Economic feasibility exception. If the cost to restore the property exceeds the
diminution in the property's market value to such a disproportionately high degree that
the repairs are no longer economically feasible, the injury may be deemed permanent
as a matter of law. Gilbert Wheeler, Inc., 449 S.W.3d at 481. Therefore, the Committee
recommends that questions concerning both market value ard cost to restore be sub-
mitted to the jury. It is unclear whether disproportionality between cost to restore and
diminution in value is always a matter of law or whether, in some circumstances, it
may be a fact question. In any event, upon the court's determination of the nature of
the injury, only the appropriate calculation of damages (1.e., repair costs or diminution
in value) should be considered. See Gilbert Wheeler, Inc., 449 S.W.3d at 481. But see
Ludt v. McCollum, 762 S.W.2d 575, 576 (Tex. 1988) (per curiam) (in DTPA case,
plaintiff should be permitted to recover repairs and permanent reduction in postrepair
value to real property).

162

TRESPASS PJC 11.7

PJC 11.7 Diminution in Market Value (Permanent Injury to
Property)— Questions and Instructions

QUESTION

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne for the property damage, if any, resulting from the tres-
pass?

Consider only the difference in market value of Paul Payne's land resulting
from the trespass. “Market value" is the price a willing seller not obligated to
sell can obtain from a willing buyer not obligated to buy. The difference in
market value is the decrease in market value in the time immediately before
and after the act or omission occurred.

Do not include interest on any amount of damages you find. Answer in dol-
lars and cents for damages, if any.

Answer:

What sum of money, if any, if paid now in cash, would fairly and reasonably
compensate Paul Payne for the mental anguish resulting from the trespass?

Answer in dollars and cents for damages, if any.

Answer:

COMMENT

When to use. PJC 11.7 submits the measure of damages recoverable for perma-
nent injury and should be conditioned on a “Yes” answer to prior liability questions.

Source of questions and instructions. PJC 11.7 is derived from Gilbert Wheeler,
Inc. v. Enbridge Pipelines (East Texas), L.P., 449 S.W.3d 474 (Tex. 2014), and Schnei-
der National Carriers, Inc. v. Bates, 147 S.W.3d 264, 276 (Tex. 2004).

Mental anguish add-on. Mental anguish damages should be submitted as part of
PJC 11.7 only when the trespass has been found to be intentional. This is because men-
tal anguish damages are recoverable in actions for trespass to real property, but Texas
courts have required a showing of deliberate and willful trespass and actual property
damage before awarding damages for emotional distress or mental anguish. City of
Tyler v. Likes, 962 S.W.2d 489, 497—500 (Tex. 1997).

Intrinsic value exception. If the reduction in market value caused by a perma-
nent injury is "essentially nominal," the plaintiff may be able to recover the damaged

163

PJC 11.7 TRESPASS

property's “intrinsic value.” Gilbert Wheeler, Inc., 449 S.W.3d at 482-83 (confirming
intrinsic value exception is valid and extending Porras v. Craig, 675 S.W.2d 503, 506
(Tex. 1984)). In such a circumstance, an additional question will be required. Gilbert
Wheeler, Inc., 449 S.W.3d at 482. The Committee recommends the following lan-
guage:

If you found that there was no diminishment of the property's fair
market value, or so little diminishment of that value that the loss is
essentially nominal, what amount, if any, should be awarded to Paul
Payne for the intrinsic value of Ais damaged property, that 1s, the
ornamental and utilitarian value of the property?

Elements considered separately. Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 770 (Tex. 2002), provides an instruction for cases involving undefined or
potentially overlapping categories of damages. In those cases, the following language,
adapted from Golden Eagle Archery, Inc., should be substituted for the instruction to
consider each element separately:

Consider the elements of damages listed below and none other. Do
not award any sum of money on any element if you have otherwise,
under some other element, awarded a sum of money for the same
loss. That is, do not compensate twice for the same loss, if any.

164

TRESPASS PJC 11.8

PJC 11.8 Personal Injury Damages Resulting from Trespass—
Question and Instructions

QUESTION
What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne for the damages, if any, resulting from the trespass?

Consider the elements of damages listed below and none other. Consider
each element separately. Do not reduce the amounts, if any, in your answers
because of the negligence, if any, of Paul Payne. Any recovery will be deter-
mined by the court when it applies the law to your answers at the time of judg-
ment.

Answer separately, in dollars and cents, for damages, if any.
1. Physical pain [and mental anguish] sustained in the past.

Answer:

2. Physical pain [and mental anguish] that, in reasonable probability,
Paul Payne will sustain in the future.

Answer:

3. Loss of earning capacity sustained in the past.

Answer:

4. Loss of earning capacity that, in reasonable probability, Paul Payne
will sustain in the future.

Answer:

5. Disfigurement sustained in the past.

Answer:

6. Disfigurement that, in reasonable probability, Paul Payne will sus-
tain in the future.

Answer:

7. Physical impairment sustained in the past.

Answer:

165

PJC 11.8 TRESPASS

8. Physical impairment that, in reasonable probability, Paul Payne
will sustain in the future.

Answer:

9. Medical care expenses incurred in the past.
Answer:

10. Medical care expenses that, in reasonable probability, Paul Payne
will incur in the future.

Answer:

COMMENT

Damages. To determine what damages, if any, are recoverable for a trespass, the
type of conduct or nature of activity that causes the entry on the property must be iden-
tified. See Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 920-23
(Tex. 2013). Generally, one who invades or trespasses on the property rights of
another, while acting in the good-faith and honest belief that he had the legal right to
do so, is regarded as an innocent trespasser and liable only for the actual damages sus-
tained. Coinmach Corp., 417 S.W.3d at 920-23. The measure of damages in a trespass
case is the sum necessary to make the plaintiff whole, and the recovery of actual dam-
ages for temporary injury in a trespass is limited to the amount necessary to place the
plaintiff in the position he would have been in but for the trespass, including the cost
of restoration or repair of the land to its former condition, the loss of use of the land,
and the loss of expected profits from use of the land. Coinmach Corp., 417 S.W.3d at
920-23.

Types of personal injury damages available. The types of damages listed above
are derived from PJC 28.3, which is the basic general damages question to be used in
the usual personal injury case. PJC 11.8 separately submits past and future damages.
See Tex. Fin. Code § 304.1045. The “do not compensate twice” instruction is adapted
from Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex. 2003).

Mental anguish damages available for intentional trespass. Mental anguish
damages are recoverable when the trespass is intentional. City of Tyler v. Likes, 962
S.W.2d 489, 497—500 (Tex. 1997). Texas courts have required a showing of deliberate
and willful trespass and actual property damage before awarding damages for emo-
tional distress or mental anguish. Likes, 962 S.W.2d at 497—500. The appropriate ques-
tion can be found in PJC 11.4.

Caveat on submitting physical pain and mental anguish together. To avoid
concerns about improperly mixing valid and invalid elements of damages (see Harris

166

TRESPASS PJC 11.8

County v. Smith, 96 S.W.3d 230, 234 (Tex. 2002)), when the sufficiency of the evi-
dence to support either physical pain or mental anguish is in question, separate sub-
mission of those items may avoid the need for a new trial if a sufficiency challenge is
upheld on appeal. See Katy Springs & Manufacturing, Inc. v. Favalora, 476 S.W.3d
579, 597—99, 610—11 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (although
challenge to separate submission was waived, separate awards allowed modification
of judgment, rather than remand for new trial, where evidence of future mental
anguish was legally insufficient). The Texas Supreme Court has yet to decide the
issue.

Reasonable expenses and necessary medical care. If there is a question whether
medical expenses are reasonable or medical care is necessary, the following should be
substituted for elements 9 and 10:

9. Reasonable expenses of necessary medical care incurred in
the past.

Answer:

10. Reasonable expenses of necessary medical care that, in rea-
sonable probability, Paul Payne will incur in the future.

Answer:

Medical care expenses may also be replaced by the specific items (e.g., physicians’
fees, dental fees, chiropractic fees, hospital bills, medicine expenses, nursing services’
fees) raised by the evidence. In an appropriate case, the phrase health-care expenses
may replace medical care expenses.

167

PJC 11.9 TRESPASS

PJC 11.9 Personal Injury Damages Resulting from Trespass
Committed with Malice—Questions and Instructions

QUESTION
If you answered “Yes” to Question [11.2], then answer the following
question. Otherwise, do not answer the following question.

Do you find by clear and convincing evidence that Don Davis's trespass was
committed with malice?

"Clear and convincing evidence" means the measure or degree of proof that
produces a firm belief or conviction of the truth of the allegations sought to be
established.

*Malice" means—

l. a specific intent by Don Davis to cause substantial injury to Paul
Payne; or

2. anactor omission by Don Davis,

a. which when viewed objectively from the standpoint of Don
Davis at the time of its occurrence involves an extreme degree
of risk, considering the probability and magnitude of the
potential harm to others; and

b. of which Don Davis has actual, subjective awareness of the
risk involved, but nevertheless proceeds with conscious indif-
ference to the rights, safety, or welfare of others.

Answer “Yes” or “No.”

Answer:

QUESTION
If you answered the above question “Yes,” then answer the following ques-
tion. Otherwise, do not answer the following question.

You are instructed that you must unanimously agree on the amount of any
award of exemplary damages.

What sum of money, if any, should be assessed against Don Davis and
awarded to Paul Payne as exemplary damages for the conduct found in
response to Question [11.9]?

168

TRESPASS PJC 11.9

“Exemplary damages" means an amount that you may in your discretion
award as an example to others and as a penalty or by way of punishment, in
addition to any amount that you may have found as actual damages.

Factors to consider in awarding exemplary damages, if any, are—

1. The nature of the wrong.
2. The character of the conduct involved.
3. The degree of culpability of the wrongdoer.

4. Thesituation and sensibilities of the party concerned.

5. The extent to which such conduct offends a public sense of justice
and propriety.

6. The net worth of Don Davis.
Answer in dollars and cents, if any.

Answer:

COMMENT

Exemplary damages available only if malice is found. Exemplary damages are
recoverable when the harm results from malice. See Tex. Civ. Prac. & Rem. Code
§ 41.003(a). To obtain exemplary damages in a trespass action, the plaintiff must
prove by clear and convincing evidence that the defendant intended to harm the plain-
tiff. See Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 922 (Tex.
2013) (citing Wilen v. Falkenstein, 191 S.W.3d 791, 800—801 (Tex. App.—Fort Worth
2006, pet. denied)).

Bifurcation. No predicating instruction is necessary if the court has granted a
timely motion to bifurcate trial of the amount of punitive damages. See Tex. Civ. Prac.
& Rem. Code § 41.009. If in the first phase of the trial the jury finds facts establishing
a predicate for an award of exemplary damages, then a separate phase two jury charge
should be prepared. In such a phase two jury charge, PJC 28.7 should be submitted
with both PJC 1.3 and PJC 1.4 instructions.

169

CHAPTER 12

PJC 12.1

PJC 12.2

PJC 12.2A

PJC 12.2B

PJC 12.2C

PJC 12.3

PJC 12.3A

PJC 12.3B

PJC 12.3C

PJC 12.4

PJG 12.5

PJC 12.6

NUISANCE
Nuisance Generally— When to Apply (Comment). ........... 173
Private Nuisance .......... 0.00 cece eee ees 175
Private Nuisance—Intentional ...............00 2c ee 175
Private Nuisance—Negligent........... 0.00.0 eee eee 175
Private Nuisance— Strict Liability .................0.05. 176
Public Nuisance .. 1.2.0.0... cece eee eee eee 178
Public Nuisance—Intentional.................02.-0000- 178
Public Nuisance—Negligent............. 0.0 e cece eens 178
Public Nuisance—Abnormally Dangerous Conduct........ 179
Nature of Nuisance—Permanent or Temporary .............. 182
Damages from Permanent Nuisance ...............-00000- 184
Damages from Temporary Nuisance.................00 2 eee 189

171

NUISANCE PJC 12.1

PJC 12.1 Nuisance Generally—When to Apply (Comment)

Definitions. A “nuisance” is a condition that substantially interferes with the use
and enjoyment of land by causing unreasonable discomfort or annoyance to a person
of ordinary sensibilities attempting to use and enjoy it. Crosstex North Texas Pipeline,
L.P. v. Gardiner, 505 S.W.3d 580, 600—01 (Tex. 2016) (confirming definition of nui-
sance); Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex. 2011) (per curiam); Schneider
National Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004). Whether a defen-
dant may be held liable for causing a nuisance depends on the culpability of the defen-
dant's conduct, in addition to proof that the interference is a nuisance. Crosstex, 505
S.W.3d at 604. It “generally presents fact issues for the jury to decide.” Crosstex, 505
S.W.3d at 591. The term “nuisance” has been used frequently in different contexts.
This PJC therefore clarifies the distinctions within the law in the context of private and
public nuisances.

In private nuisance, a defendant's conduct substantially interferes with the use and
enjoyment of real property owned by an individual or small group of persons. “It may,
for example, cause physical damage to the plaintiffs’ property, economic harm to the
property's market value, harm to the plaintiffs’ health, or psychological harm to the
plaintiffs’ ‘peace of mind’ in the use and enjoyment of their property." Crosstex, 505
S.W.3d at 596.

In public nuisance, a defendant's conduct unreasonably interferes with a right com-
mon to the public at large by affecting the public health or public order. See Crosstex,
505 S.W.3d at 591 n.3.

A claim for attractive nuisance is not a type of common-law nuisance. Rather, it is a
legal basis for premises liability and therefore remains within the purview of premises
liability pattern jury charges. Similarly, a criminal nuisance is not a common-law nui-
sance and thus remains within the purview of criminal pattern jury charges. See the
appendix to this volume for more information about the Texas Criminal Pattern Jury
Charges series.

Practitioners should apply PJC 12.2—12.6 as follows:

1. Ifthe claim involves a right to use and enjoy privately owned land, use
PJC 12.2 (“Private Nuisance").

2. Ifthe claim involves a common public right, use PJC 12.3 (“Public Nui-
sance"). PJC 12.2 and 12.3 may be used if the claim invokes both private and public
nuisance.

3. Ifthe claim involves children injured while trespassing on a defendant's
property, use PJC 66.10 (“Premises Liability—Attractive Nuisance”) in the current
edition of State Bar of Texas, Texas Pattern Jury Charges—Malpractice, Premises
& Products.

173

PJC 12.1 NUISANCE

4. Ifthe alleged conduct involves a crime or is being prosecuted under a
Texas criminal statute, use the applicable definition from the Texas Penal Code or
applicable statute. See also the current edition of State Bar of Texas, Texas Criminal
Pattern Jury Charges—Crimes against Persons & Property.

5. Ifthe alleged conduct involves a trespass, the charge should refer to tres-
pass separately from nuisance. See chapter 11 in this volume.

Pleading specific culpability. Nuisance involves three levels of culpability: (1)
intentional conduct, (2) negligent conduct, or (3) conduct that is abnormal and out of
place in its surroundings. See Crosstex, 505 S.W.3d at 602; City of Tyler v. Likes, 962
S.W.2d 489, 503 (Tex. 1997). A “defendant can be liable for causing a nuisance if the
defendant intentionally causes it, negligently causes it, or—in limited circumstances—
causes it by engaging in abnormally dangerous or ultra-hazardous activities."
Crosstex, 505 S.W.3d at 588. If the defendant is a governmental entity, the plaintiff
must show intentional nuisance. City of San Antonio v. Pollock, 284 S.W.3d 809, 820—
21 (Tex. 2009).

174

NUISANCE PJC 12.2

PJC 12.2 Private Nuisance
PJC 12.2A Private Nuisance—Intentional

QUESTION

Did Don Davis intentionally create a private nuisance?

A private nuisance is a condition that substantially interferes with the use
and enjoyment of Paul Payne's land by causing unreasonable discomfort or
annoyance to persons of ordinary sensibilities attempting to use and enjoy it.

“Intentionally” means that Don Davis (1) acted for the purpose of causing
the interference or (2) knew that the interference would result or was substan-
tially certain to result from Ais conduct.

Answer “Yes” or “No.”

Answer:

PJC 12.2B Private Nuisance—Negligent

QUESTION

Did Don Davis negligently create a private nuisance?

A private nuisance is a condition that substantially interferes with the use
and enjoyment of Paul Payne’s land by causing unreasonable discomfort or
annoyance to persons of ordinary sensibilities attempting to use and enjoy it.

“Negligently” means that Don Davis failed to use ordinary care, that is,
failed to do that which a person of ordinary prudence would have done under
the same or similar circumstances or did that which a person of ordinary pru-
dence would not have done under the same or similar circumstances.

“Ordinary care” means that degree of care that would be used by a person of
ordinary prudence under the same or similar circumstances.

Answer “Yes” or “No.”

Answer:

175

PJC 12.2 NUISANCE

PJC 12.2C Private Nuisance— Strict Liability

QUESTION
Did Don Davis create a private nuisance by abnormal and out-of-place con-
duct?

“Abnormal and out-of-place conduct" means conduct that—
1. was out of place in its surroundings; and

2. was an abnormally dangerous activity or involved an abnormally
dangerous substance; and

3. created a high degree of risk of serious injury.
Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 12.2 is appropriate in cases involving private nuisance. The
grounds listed in PJC 12.2A—12.2C are alternatives, and any of the listed grounds that
are not raised by the pleadings or supported by sufficient evidence should be omitted.
In private nuisance cases, the jury decides factual disputes regarding the frequency,
extent, and duration of the conditions causing the nuisance. Crosstex North Texas
Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 609 (Tex. 2016); Schneider National Car-
riers, Inc. v. Bates, 147 S.W.3d 264, 275 (Tex. 2004); see also Barnes v. Mathis, 353
S.W.3d 760, 763-64 (Tex. 2011) (per curiam). The question should be phrased based
on the pleadings, evidence, and specific allegations.

Source of definition and culpability levels. “Nuisance” generally means a con-
dition that substantially interferes with the use and enjoyment of land by causing
unreasonable discomfort or annoyance to a person of ordinary sensibilities attempting
to use and enjoy it. Crosstex, 505 S.W.3d at 600, 606; Barnes, 353 S.W.3d at 763;
Schneider National Carriers, Inc., 147 S.W.3d at 269; Holubec v. Brandenberger, 111
S.W.3d 32, 37 (Tex. 2003). Whether a defendant may be held liable for causing a nui-
sance depends on the culpability of the defendant's conduct, in addition to proof that
the interference is a nuisance. There must be some level of culpability on behalf of the
defendant. Nuisance cannot be premised on mere accidental interference with the use
and enjoyment of land but only on such interferences as are intentional and unreason-

176

NUISANCE PJC 12.2

able or result from negligent, reckless, or abnormally dangerous conduct. Texas courts
have broken nuisance into three classifications: negligent, intentional, and abnormally
dangerous conduct that is also out of place in its surroundings. Crosstex, 505 S.W.3d at
588, 604 (retaining the three categories); City of Tyler v. Likes, 962 S.W.2d 489, 503
(Tex. 1997).

Damages. See PJC 12.5 and 12.6, as applicable.

Instruction regarding usefulness. A "defendant's liability for creating a nui-
sance does not depend on a showing that the defendant acted or used its property ille-
gally or unlawfully." Crosstex, 505 S.W.3d at 601. The court may further instruct the
jury that if a nuisance exists, it shall not be excused by the fact that it arises from law-
ful or useful conduct. See City of Uvalde v. Crow, 713 S.W.2d 154, 157 (Tex. App.—
Texarkana 1986, writ ref'd n.r.e.) (affirming jury charge submission). A state-issued
permit does not shield the permit holder from civil tort liability for the authorized
activities. FPL Farming, Ltd. v. Environmental Processing Systems, L.C., 351 S.W.3d
306, 310-11, 314 (Tex. 2011). Furthermore, even if a commercial enterprise holds a
valid permit to conduct a particular business, the manner in which it performs its
approved activity may give rise to a claim for nuisance. C.C. Carlton Industries, Ltd.
v. Blanchard, 311 S.W.3d 654, 660 (Tex. App.—Austin 2010, pet. denied). When
appropriate, the following sentence may be added to the jury submission:

You are further instructed that a nuisance, if it exists, is not
excused by the fact that it arises from the conduct of an operation that
is in itself lawful or useful.

When injunction sought, judge makes determination. When the plaintiff seeks
injunctive relief, the court, not the jury, makes a determination of reasonableness
based on a balancing of the equities. Crosstex, 505 S.W.3d at 610; Schneider National
Carriers, Inc., 147 S.W.3d at 286-87. The judge may make such a determination
before submitting the nuisance question to the jury. Schneider National Carriers, Inc.,
147 S.W.3d at 289.

Standing in private nuisance claims. A private nuisance may be asserted by
those with property rights and privileges with respect to the use and enjoyment of the
land affected, including possessors of the land. Hot Rod Hill Motor Park v. Triolo, 293
S.W.3d 788, 791 (Tex. App.—Waco 2009, pet. denied). An occupancy interest in land
is sufficient to vest a person with a right to assert a nuisance claim. Hot Rod Hill Motor
Park, 293 S.W.3d at 791. Minor plaintiffs have no standing to assert nuisance claims
based on damage to real property if they did not own the properties when the nuisance
began. In re Premcor Refining Group, Inc., 262 S.W.3d 475, 480 (Tex. App.—Beau-
mont 2008, no pet.) (per curiam). Standing, however, is a matter of law for the court to
decide and should not be submitted to the jury. See Douglas v. Delp, 987 S.W.2d 879,
882—83 (Tex. 1999); West v. Brenntag Southwest, Inc., 168 S.W.3d 327, 335 (Tex.
App.—Texarkana 2005, pet. denied).

177

PJC 12.3 NUISANCE

PJC 12.3 Public Nuisance
PJC 12.3A Public Nuisance—Intentional

Don Davis creates a “public nuisance" if his conduct unreasonably interferes
with a public right or public interest.

“Unreasonable interference" means that Don Davis’s conduct must be a sig-
nificant interference with the public's safety or health, and the conduct must
adversely affect all or a considerable part of the community.

QUESTION

Did Don Davis intentionally create a public nuisance?

“Intentionally” means that Don Davis acted for the purpose of causing the
interference or knew that the interference would result or was substantially cer-
tain to result from his conduct.

Answer “Yes” or “No.”

Answer:

PJC 12.3B Public Nuisance—Negligent

Don Davis creates a “public nuisance" if his conduct unreasonably interferes
with a public right or public interest.

QUESTION

Did Don Davis negligently create a public nuisance?

"Negligently" means that Don Davis failed to use ordinary care, that is,
failed to do that which a person of ordinary prudence would have done under
the same or similar circumstances or did that which a person of ordinary pru-
dence would not have done under the same or similar circumstances.

"Ordinary care" means that degree of care that would be used by a person of
ordinary prudence under the same or similar circumstances.

178

NUISANCE PJC 12.3

Answer “Yes” or “No.”

Answer:

PJC 12.3C Public Nuisance—Abnormally Dangerous Conduct

Don Davis creates a “public nuisance" if his conduct unreasonably interferes
with a public right or public interest.

“Unreasonable interference" means that Don Davis's conduct must be a sig-
nificant interference with the public's safety or health, and the conduct must
adversely affect all or a considerable part of the community.

QUESTION
Did Don Davis create a public nuisance by abnormal and out-of-place con-
duct?
“Abnormal and out-of-place conduct" means conduct that—
1. was out of place in its surroundings; and

2. was an abnormally dangerous activity or involved an abnormally
dangerous substance; and

3. created a high degree of risk of serious injury.
Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 12.3 is appropriate when a claim for public nuisance is made.
The grounds listed in PJC 12.3A—12.3C are alternatives, and any of the listed grounds
that are not raised by the pleadings or supported by sufficient evidence should be omit-
ted. A nuisance may be intentional or negligent or arise from conduct otherwise culpa-
ble as abnormally dangerous and out of place in its surroundings. The question
submitted should be based on the trial pleadings, evidence, and allegations. Watson v.
Brazos Electric Power Cooperative, 918 S.W.2d 639, 644-45 (Tex. App.—Waco
1996, writ denied) (per curiam) (pleadings and evidence must support submission).

Source of definition and culpability levels. Public nuisance involves an unrea-
sonable interference with a right common to the general public. Crosstex North Texas
Pipeline, L.P. v Gardiner, 505 S.W.3d 580, 591 n.3 (Tex. 2016); Jamail v. Stoneledge
Condominium Owners Ass n, 970 S.W.2d 673, 676 (Tex. App.—Austin 1998, no pet.);

179

PJC 12.3 NUISANCE

Walker v. Texas Electric Service Co., 499 S.W.2d 20, 26-27 (Tex. App.—Fort Worth
1973, no writ); see also McKee v. City of Mt. Pleasant, 328 S.W.2d 224, 229 (Tex.
App.—Texarkana 1959) (describing historical definition of public nuisance).

Use of other definitions. “Public nuisance" is defined differently in statutes and
municipal ordinances. Statutory definitions are narrow and specific to certain activi-
ties. If a claim is brought under such statutes, the charge should be modified to include
the specific statutory definition.

Effect of statutes. Statutorily prescribed conduct may determine the reasonable-
ness of a defendant’s conduct. For example, with respect to contamination, the Texas
Water Code determines whether “unreasonable” levels of contaminants are present in
certain bodies of water. See Ronald Holland’s A-Plus Transmission & Automotive, Inc.
v. E-Z Mart Stores, Inc., 184 S.W.3d 749, 758 (Tex. App.—San Antonio 2005, no pet.)
(noting an unreasonable level of contamination). Statutes dealing with statutorily
defined “public nuisances” or “common nuisances” provide that private citizens may
bring a lawsuit to abate certain enumerated nuisances. See Tex. Civ. Prac. & Rem.
Code §§ 125.0015, 125.061—.063. For example, a person who maintains a place and
knowingly tolerates certain activities on the premises and fails to abate those activities
is deemed to maintain a common nuisance for any such activities including, but not
limited to, the following: improperly discharging a firearm in public, engaging in ille-
gal gambling, or compelling or engaging in prostitution. See Tex. Civ. Prac. & Rem.
Code § 125.0015. Practitioners are encouraged to review the Texas Penal Code, the
Texas Civil Practice and Remedies Code, and the Texas Health and Safety Code for
provisions that may be applicable to the facts at issue.

Statutory nuisance not necessarily common-law nuisance. The Texas legisla-
ture has outlined specific conditions that constitute a nuisance under various statutes.
A "nuisance per se" is an act, occupation, or structure that is a nuisance at all times and
under any circumstances, regardless of location or surroundings. City of Dallas v. Jen-
nings, 142 S.W.3d 310, 316 n.3 (Tex. 2004). A “nuisance in fact" is an act, occupation,
or structure that becomes a nuisance by reason of its circumstances or surroundings.
Jennings, 142 S.W.3d at 316 n.3. However, violation of a statute or ordinance is not
sufficient to prove a common-law nuisance without additional evidence. Luensmann v.
Zimmer-Zampese & Associates, Inc., 103 S.W.3d 594, 598 (Tex. App.—San Antonio
2003, no pet.).

Damages. See PJC 12.5 and 12.6, as applicable.

180

NUISANCE PJC 12.3

permit does not shield the permit holder from civil tort liability for the authorized
activities. FPL Farming, Ltd. v. Environmental Processing Systems, L.C., 351 S.W.3d
306, 310-11, 314 (Tex. 2011). Furthermore, even if a commercial enterprise holds a
valid permit to conduct a particular business, the manner in which it performs its
approved activity may give rise to a claim for nuisance. C.C. Carlton Industries, Ltd.
v. Blanchard, 311 S.W.3d 654, 660 (Tex. App.—Austin 2010, pet. denied). When
appropriate, the following sentence may be added to the jury submission:

You are further instructed that a nuisance, if it exists, is not
excused by the fact that it arises from the conduct of an operation that
is in itself lawful or useful.

When injunction sought, judge makes determination. When the plaintiff seeks
injunctive relief the court, not the jury, makes a determination of reasonableness based
on a balancing of the equities. Crosstex, 505 S.W.3d at 610; Schneider National Carri-
ers, Inc. v. Bates, 147 S.W.3d 264, 286—87 (Tex. 2004).

Standing for private individuals alleging public nuisance claims. Typically, a
city or state attorney's office sues for a public nuisance. A private citizen must estab-
lish standing to sue. To establish standing, the plaintiff must have suffered harm differ-
ent in kind from the public at large. Jamail, 970 S.W.2d at 676; Quanah Acme &
Pacific Railway Co. v. Swearingen, 4 S.W.2d 136, 139 (Tex. App.—Amarillo 1927,
writ ref' d). Standing, however, is a matter of law for the court to decide and should not
be submitted to the jury. See Douglas v. Delp, 987 S.W.2d 879, 882-83 (Tex. 1999)
(courts may not address merits of case unless standing is present because it 1s part of
subject-matter jurisdiction); West v. Brenntag Southwest, Inc., 168 S.W.3d 327, 334
(Tex. App.— Texarkana 2005, pet. denied) (standing is question of law subject to de
novo review); see also American Electric Power Co. v. Connecticut, 564 U.S. 410, 419
(2011) (discussing Article III standing as matter of law in nuisance case).

181

PJC 12.4 NUISANCE

PJC 12.4 Nature of Nuisance— Permanent or Temporary
QUESTION
If you answered “Yes” to Question [applicable liability question],

then answer the following question. Otherwise, do not answer the following
question.

Is the property capable of being repaired, fixed or restored?
Answer "Yes" or “No.”

Answer:

QUESTION

If you answered the above question “Yes,” then answer the following ques-
tion. Otherwise, do not answer the following question.

Is the injury—

1. ofsuch a character as to recur repeatedly, continually, and regularly,
such that future injury can be reasonably evaluated?

Or—

Answer “1” or “2.”

Answer:

COMMENT

When to use. PJC 12.4 is appropriate when the nature of a nuisance is in dispute
and the frequency, extent, or duration of the nuisance is disputed and must be resolved
before the court may classify the nuisance as either permanent or temporary as a mat-
ter of law. Schneider National Carriers, Inc. v. Bates, 147 S.W.3d 264, 270-75 (Tex.
2004); see Gilbert Wheeler, Inc. v. Enbridge Pipelines (East Texas), L.P., 449 S.W.3d
474, 478—80 (Tex. 2014) (when facts “are disputed and must be resolved to correctly
evaluate the nature of the injury, the court, upon proper request, must present the issue
to the jury”).

Consequences of classification. Categorizing a nuisance as permanent or tempo-
rary affects (1) whether damages are available for future or only past injuries, (2)

182

NUISANCE PJC 12.4

whether one or a series of suits is required, and (3) whether claims accrue (and thus
limitations begin) with the first or each subsequent injury. Schneider National Carri-
ers, Inc., 147 S.W.3d at 275. The distinction between temporary and permanent nui-
sances also determines the damages that may be recovered. See Crosstex North Texas
Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 609—12 (Tex. 2016); Schneider National
Carriers, Inc., 147 S.W.3d at 275; Gilbert Wheeler, Inc., 449 S.W.3d at 478 n.1; West v.
Breentag Southwest, Inc., 168 S.W.3d 327, 336 n.9 (Tex. App.— Texarkana 2005, pet.
denied). See PJC 12.5 and 12.6.

Date of accrual of nuisance. The jury is allowed to separately determine the date
on which the nuisance began. See Natural Gas Pipeline Co. of America v. Justiss, 397
S.W.3d 150, 155 (Tex. 2012). In such a circumstance, the Committee recommends the
following language be added:

On what date did the nuisance begin?
Answer with a date in the blank below.

Answer:

183

PJC 12.5 NUISANCE

PJC 12.5 Damages from Permanent Nuisance

QUESTION

[Following a court determination that the nuisance was permanent. ]

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne for the damages, if any, resulting from the permanent nui-
sance?

Answer separately, in dollars and cents, for damages, if any.
1. Loss of market value, including lost rents and profits, if any.

Consider the difference in value of Paul Payne's property immedi-
ately before and after the nuisance, if any. “Market value" means the
amount that would be paid in cash by a willing buyer who desires to
buy, but is not required to buy, to a willing seller who desires to sell, but
is under no necessity of selling.

Answer:

2. Personal injury sustained in the past.

Answer:

3. Personal injury that, in reasonable probability, Paul Payne will sus-
tain in the future.

Answer:

COMMENT

Damages for nuisance include property and personal injury
damages. Nuisance damages may include damages for property and for personal
injuries. See Crosstex North Texas Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 596
(Tex. 2016); Schneider National Carriers, Inc. v. Bates, 147 S.W.3d 264, 275—80 (Tex.
2004). The following types of damages may be recoverable when they arise from a

184

NUISANCE PJC 12.5

nuisance: “physical damage to the plaintiffs’ property, economic harm to the prop-
erty’s market value, harm to the plaintiffs’ health, or psychological harm to the plain-
tiffs’ *peace of mind’ in the use and enjoyment of their property." Crosstex, 505
S.W.3d at 596. Only those elements for which evidence is introduced should be sub-
mitted.

Property damages recoverable by those with property interest: loss of market
value or cost of repairs. When a nuisance is permanent, the claimant may recover
lost market value. The value should be ascertained at the date of trial and should be the
market value of the property for any use to which it might be appropriated. The jury is
permitted to consider all the uses to which the property is reasonably adaptable and for
which it is, or in all reasonable probability will become, available within the foresee-
able future. However, a jury may not consider purely speculative uses. Crosstex, 505
S.W.3d at 610-11.

When the nuisance is temporary, the claimant may recover only damages that have
accrued up to the institution of the suit or to the time of the trial. Such damages are cal-
culated as loss of rental value, or use value, or possibly the cost of restoring the land.
Crosstex, 505 S.W.3d at 610.

When the damage results from an ongoing condition rather than a single event that
results in a permanent nuisance, courts apply a more flexible rule; the proper compari-
son is the market value of the property with and without the nuisance. Crosstex, 505
S.W.3d at 611—12. Persons whose property interests were invaded may sue for private
nuisance. Persons with property interests include owners, renters, and easement own-
ers. See Schneider National Carriers, Inc., 147 S.W.3d at 268 n.2 (tenants at time of
injury maintain standing).

Current owners, past owners, and tenants can recover damages. A current
owner can seek damages for personal injury and injury to real property. Crosstex, 505
S.W.3d at 596. A past owner can sue for property damages if the injury occurred while
the plaintiff owned the land, damages resulted from a permanent nuisance, and the
plaintiff did not assign the right to sue to a later purchaser. See Vann v. Bowie Sewer-
age Co., 90 S.W.2d 561, 562—63 (Tex. 1936); Lay v. Aetna Insurance Co., 599 S.W.2d
684, 686 (Tex. App.—Austin 1980, writ ref'd n.r.e.). A tenant may seek nuisance dam-
ages for personal injury. Schneider National Carriers, Inc., 147 S.W.3d at 268 n.2;
Faulkenbury v. Wells, 68 S.W. 327, 329 (Tex. App.— Dallas 1902, no writ). An ease-
ment owner can seek an injunction to stop a nuisance. See, e.g., Freedman v. Briarcroft
Property Owners, Inc., 776 S.W.2d 212, 215 (Tex. App.—Houston [14th Dist.] 1989,
writ denied) (property owners association had standing to sue to enforce restrictions).

Loss of market value. Loss of market value or diminution in value is a figure that
reflects all property damages, including lost rents expected in the future. Crosstex, 505
S.W.3d at 610 (citing Schneider National Carriers, Inc., 147 S.W.3d at 276). Jurors
make a reasonable estimate of the long-term impact of a nuisance based on competent

185

PJC 12.5 NUISANCE

evidence. Schneider National Carriers, Inc., 147 S.W.3d at 277. However, a decrease
in market value does not necessarily mean there is a nuisance, nor does an increase
mean there is not a nuisance. Schneider National Carriers, Inc., 147 S.W.3d at 277.

Cost of repairs. Cost of repairs cannot be obtained for the same damage when
market value is already assessed or included. See C.C. Carlton Industries, Ltd. v.
Blanchard, 311 S.W.3d 654, 662—63 (Tex. App.—Austin 2010, pet. denied). Repair
costs can be separately divided into jury questions specific to each property damaged.
See C.C. Carlton Industries, Ltd., 311 S.W.3d at 662—63.

Generally no double recovery allowed. Texas law does not generally permit
double recovery for loss of market value and cost of repairs. Schneider National Car-
riers, Inc., 147 S.W.3d at 276. However, a dual recovery of diminution in value and
cost of repairs is allowed if the issue is submitted to the jury and if the property will
suffer a reduction in market value once repairs have been completed or has suffered a
loss of market value even though repairs were completed. See Ludt v. McCollum, 762
S.W.2d 575, 576 (Tex. 1988) (per curiam); Royce Homes v. Humphrey, 244 S.W.3d
570, 582 (Tex. App.—Beaumont 2008, pet. denied). In such cases the above question
should be modified to include a finding on the cost to repair. Additionally, “stigma”
damages, which represent the market's perception of a decrease in property value that
may continue to exist after an injury to real property has been fully repaired or remedi-
ated, may also be recoverable in certain circumstances. See Houston Unlimited, Inc. v.
Mel Acres Ranch, 443 S.W.3d 820, 824 (Tex. 2014) (describing effect of “damage to
the reputation of the realty”).

Personal injury damages recoverable. While nuisance is often based on prop-
erty damages, a plaintiff may also recover personal injury damages caused by a nui-
sance. Crosstex, 505 S.W.3d at 596. This could be considered physical harm or
something that assaults the senses. See City of Tyler v. Likes, 962 S.W.2d 489, 503-04
(Tex. 1997). Personal injury damages can be enumerated based on the basic question
at PJC 28.3. Use only the elements of damage that apply to the damages sought in the
case.

Mental anguish damages not recoverable in negligence-based nuisance
claims. If the nuisance claim is based on negligence, mental anguish damages are
not recoverable. See Likes, 962 S.W.2d at 494—96; see also Kane v. Cameron Interna-
tional Corp., 331 S.W.3d 145, 148—50 (Tex. App.—Houston [14th Dist.] 2011, no
pet.) (noting that Texas law does not recognize fear-of-dreaded-disease claims in nui-
sance absent showing capability of harm).

Annoyance and discomfiture. The Texas Supreme Court has noted that “consid-
erable authority" exists for the proposition that a nuisance that impairs the comfortable
enjoyment of real property may give rise to damages for *annoyance and discomfi-
ture." Crosstex, 505 S.W.3d at 610 n.21. However, because no such damages were

186

NUISANCE PJC 12.5

sought in Crosstex, the court did not decide the scope of these damages or determine if
they are available for either temporary nuisance, permanent nuisance, or both.

Higher level of culpability required to obtain damages against governmental
entities. If the defendant is a governmental entity, intentional conduct is a prerequi-
site in order to recover damages. City of San Antonio v. Pollock, 284 S.W.3d 809, 820—
21 (Tex. 2009). When intentional conduct is required to recover for damages, the mere
possibility of damage resulting from conduct is not evidence of intent. Pollock, 284
S.W.3d at 821.

Prejudgment interest recoverable. Prejudgment interest is recoverable on prop-
erty damages. Tex. Fin. Code § 304.102.

Statutory nuisance damages distinguished. Texas statutes also permit distinct
remedies for statutory nuisances separate from common-law nuisances. For example,
a person affected by a statutory health code violation may bring suit for an injunction
and receive court costs and reasonable attorney’s fees. See Tex. Health & Safety Code
§ 343.013(b). Examples include storing refuse that is not contained in a closed recep-
tacle and maintaining a building that is unsafe. See Tex. Health & Safety Code
§ 343.011.

Claims relating to air particulates and emissions may be considered a toxic tort
claim requiring Havner-like requirements for proof. See Cerny v. Marathon Oil Corp.,
480 S.W.3d 612, 621-22 (Tex. App.—San Antonio 2015, pet. denied); Merrell Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). Such claims may also
be affected by the Texas Civil Practice and Remedies Code, which limits liability for
an “air contaminant" not produced by a natural process. See Tex. Civ. Prac. & Rem.
Code § 75.002(h). The Committee expresses no opinion about whether Havner stan-
dards would apply to nuisance.

Abatement affects damages. Abatement of a nuisance may necessitate changes
to a jury submission regarding damages. Schneider National Carriers, Inc., 147
S.W.3d at 288-89. Past and future damages may be separated with only past damages
recoverable for a nuisance if there is abatement. Schneider National Carriers, Inc.,
147 S.W.3d at 289. When a plaintiff seeks a temporary injunction, a trial court may
make the determination whether to abate the nuisance before a jury finds it exists.
Schneider National Carriers, Inc., 147 S.W.3d at 289—90. However, if the jury deter-
mines that no nuisance has occurred, a trial court does not maintain discretion to issue
a permanent injunction based on nuisance. See Hanson Aggregates West, Inc. v. Ford,
338 S.W.3d 39, 45—48 (Tex. App.—Austin 2011, pet. denied).

Determination of permanent vs. temporary injury. Similar to determining
whether a nuisance is permanent or temporary, the court also determines if an injury to
real property is permanent or temporary. Gilbert Wheeler, Inc. v. Enbridge Pipelines
(East Texas), L.P., 449 S.W.3d 474, 480—81 (Tex. 2014). For specific questions regard-

187

PJC 12.5 NUISANCE

ing a permanent injury to real property versus a temporary injury to real property,
practitioners may use the instructions found in chapter 11, “Trespass,” in this volume.

Economic feasibility exception. If the cost of repairing a temporary injury so
disproportionately exceeds the resulting diminution in the property's market value that
restoration is no longer economically feasible, the temporary injury is deemed perma-
nent as a matter of law and damages are awarded for loss in fair market value. Gilbert
Wheeler, Inc., 449 S.W.3d at 481. Therefore, in the case of a temporary nuisance, the
Committee recommends that questions concerning both market value and cost to
repair be submitted to the jury. See PJC 12.6. It is unclear whether disproportionality
between cost to restore and diminution in value is always a matter of law or whether,
in some circumstances, it may be a fact question. In any event, upon the court's deter-
mination of the nature of the injury, only the appropriate calculation of damages—i.e.,
repair costs or diminution in value—should be considered. See Gilbert Wheeler, Inc.,
449 S.W.3d at 481.

Intrinsic value exception. If the reduction in market value caused by a perma-
nent injury is "essentially nominal," the plaintiff may be able to recover the damaged
property's “intrinsic value.” Gilbert Wheeler, Inc., 449 S.W.3d at 482-83 (confirming
intrinsic value exception is valid and extending Porras v. Craig, 675 S.W.2d 503, 506
(Tex. 1984)). In such a circumstance, an additional question will be required. Gilbert
Wheeler, Inc., 449 S.W.3d at 482. The Committee recommends the following language
be used:

If you found that there was no diminishment of the property’s
fair market value, or so little diminishment of that value that the
loss is essentially nominal, what amount, if any, should be
awarded to Paul Payne for the intrinsic value of his damaged
property, that is, the ornamental and utilitarian value of the
property?

Consider the following elements of damages, if any, and none
other. You shall not award any sum of money on any element if
you have otherwise, under some other element, awarded a sum
of money for the same loss. That is, do not compensate twice for
the same loss, if any.

188

NUISANCE PJC 12.6

PJC 12.6 Damages from Temporary Nuisance

QUESTION

[Following a court determination that the nuisance was temporary.]

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne for the damages, if any, resulting from the temporary nui-
sance?

Consider the elements of damages listed below and none other. Consider
each element separately. Do not reduce the amount, if any, in your answers
because of the negligence, if any, of Paul Payne. Any recovery will be deter-
mined by the court when it applies the law to your answers at the time of judg-
ment. In determining damages resulting from the nuisance, you may consider
the proximity, duration, and intensity of the nuisance.

Answer separately, in dollars and cents, for damages, if any.

l. Loss of use and enjoyment that has already occurred, as measured
by—

loss of rental value.

Answer:

[or]

loss of use value.

Answer:

[or]

the reasonable cost to restore the property to the condition it was in
immediately before the occurrence in question.

Answer:

2. Personal injury sustained in the past.

Answer:

COMMENT

Damages for nuisance include property and personal injury damages. Nui-
sance damages may include damages for property and for personal injuries. See

189

PJC 12.6 NUISANCE

Crosstex North Texas Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 596 (Tex. 2016);
Schneider National Carriers, Inc. v. Bates, 147 S.W.3d 264, 275-80 (Tex. 2004). The
following types of damages may be recoverable when they arise from a nuisance:
"physical damage to the plaintiffs" property, economic harm to the property's market
value, harm to the plaintiffs' health, or psychological harm to the plaintiffs" *peace of
mind' in the use and enjoyment of their property." Crosstex, 505 S.W.3d at 596. Only
those elements for which evidence is introduced should be submitted.

When the damage results from an ongoing condition rather than a single event that
results in a permanent nuisance, courts apply a more flexible rule; the proper compari-
son is the market value of the property with and without the nuisance. Crosstex, 505
S.W.3d at 611-12. Persons whose property interests were invaded may sue for private
nuisance. Persons with property interests include owners, renters, and easement own-
ers. See Schneider National Carriers, Inc., 147 S.W.3d at 268 n.2 (tenants at time of
injury maintain standing).

Current owners, past owners, and tenants can recover damages. A current
owner can seek damages for personal injury and injury to real property. Crosstex, 505
S.W.3d at 596. A past owner can sue for property damages if the injury occurred while
the plaintiff owned the land, damages resulted from a permanent nuisance, and the
plaintiff did not assign the right to sue to a later purchaser. See Vann v. Bowie Sewer-
age Co., 90 S.W.2d 561, 562—63 (Tex. 1936); Lay v. Aetna Insurance Co., 599 S.W.2d
684, 686 (Tex. App.—Austin 1980, writ ref d n.r.e.). A tenant may seek nuisance dam-
ages for personal injury. Schneider National Carriers, Inc., 147 S.W.3d at 268 n2;
Faulkenbury v. Wells, 68 S.W. 327, 329 (Tex. App.—Dallas 1902, no writ). An ease-
ment owner can seek an injunction to stop a nuisance. See, e.g., Freedman v. Briarcroft
Property Owners, Inc., 776 S.W.2d 212, 215 (Tex. App.—Houston [14th Dist.] 1989,
writ denied) (property owners association had standing to sue to enforce restrictions).

Loss of market value. Loss of market value or diminution in value is a figure that
reflects all property damages, including lost rents expected in the future. Crosstex, 505

190

NUISANCE PJC 12.6

S.W.3d at 610 (citing Schneider National Carriers, Inc., 147 S.W.3d at 276). Jurors
make a reasonable estimate of the long-term impact of a nuisance based on competent
evidence. Schneider National Carriers, Inc., 147 S.W.3d at 277. However, a decrease
in market value does not necessarily mean there is a nuisance, nor does an increase
mean there is not a nuisance. Schneider National Carriers, Inc., 147 S.W.3d at 277.

Mental anguish damages not recoverable in negligence-based nuisance
claims. If the nuisance claim is based on negligence, mental anguish damages are
not recoverable. See Likes, 962 S.W.2d at 494—96; see also Kane v. Cameron Interna-
tional Corp., 331 S. W.3d 145, 148—50 (Tex. App.—Houston [14th Dist.] 2011, no pet.)
(noting that Texas law does not recognize fear-of-dreaded-disease claims in nuisance
absent showing capability of harm).

Annoyance and discomfiture. The Texas Supreme Court has noted that *consid-
erable authority" exists for the proposition that a nuisance that impairs the comfortable
enjoyment of real property may give rise to damages for “annoyance and discomfi-

191

PJC 12.6 NUISANCE

ture." Crosstex, 505 S.W.3d at 610 n.21. However, because no such damages were
sought in Crosstex, the court did not decide the scope of these damages or determine if
they are available for either temporary nuisance, permanent nuisance, or both.

Prejudgment interest recoverable. Prejudgment interest is recoverable on prop-
erty damages. Tex. Fin. Code § 304.102.

Statutory nuisance damages distinguished. Texas statutes also permit distinct
remedies for statutory nuisances separate from common-law nuisances. For example,
a person affected by a statutory health code violation may bring suit for an injunction
and receive court costs and reasonable attorney's fees. See Tex. Health & Safety Code
§ 343.013(b). Examples include storing refuse that is not contained in a closed recep-
tacle and maintaining a building that is unsafe. See Tex. Health & Safety Code
§ 343.011.

Claims relating to air particulates and emissions may be considered a toxic tort
claim requiring Havner-like requirements for proof. See Cerny v. Marathon Oil Corp.,
480 S.W.3d 612, 621-22 (Tex. App.— San Antonio 2015, pet. denied); Merrell Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). Such claims may also
be affected by the Texas Civil Practice and Remedies Code, which limits liability for
an “air contaminant" not produced by a natural process. See Tex. Civ. Prac. & Rem.
Code § 75.002(h). The Committee expresses no opinion about whether Havner stan-
dards would apply to nuisance.

Abatement affects damages. Abatement of a nuisance may necessitate changes
to a jury submission regarding damages. Schneider National Carriers, Inc., 147
S.W.3d at 288-89. Past and future damages may be separated with only past damages
recoverable for a nuisance if there is abatement. Schneider National Carriers, Inc.,
147 S.W.3d at 289. When a plaintiff seeks a temporary injunction, a trial court may
make the determination whether to abate the nuisance before a jury finds it exists.
Schneider National Carriers, Inc., 147 S.W.3d at 289-90. However, if the jury deter-
mines that no nuisance has occurred, a trial court does not maintain discretion to issue
a permanent injunction based on nuisance. See Hanson Aggregates West, Inc. v. Ford,
338 S.W.3d 39, 45-48 (Tex. App.— Austin 2011, pet. denied).

192

NUISANCE PJC 12.6

ing a permanent injury to real property versus a temporary injury to real property,
practitioners may use the instructions found in chapter 11, “Trespass,” in this volume.

Economic feasibility exception. If the cost of repairing a temporary injury so
disproportionately exceeds the resulting diminution in the property's market value that
restoration is no longer economically feasible, the temporary injury is deemed perma-
nent as a matter of law and damages are awarded for loss in fair market value. Gilbert
Wheeler, Inc., 449 S.W.3d at 481. Therefore, in the case of a temporary nuisance, the
Committee recommends that questions concerning both market value and cost to
repair be submitted to the jury. It is unclear whether disproportionality between cost to
restore and diminution in value is always a matter of law or whether, in some circum-
stances, it may be a fact question. In any event, upon the court's determination of the
nature of the injury, only the appropriate calculation of damages—1.e., repair costs or
diminution in value—should be considered. See Gilbert Wheeler, Inc., 449 S.W.3d at
481.

Intrinsic value exception. If the reduction in market value caused by a perma-
nent injury is "essentially nominal," the plaintiff may be able to recover the damaged
property's "intrinsic value." Gilbert Wheeler, Inc., 449 S.W.3d at 482-83 (confirming
intrinsic value exception is valid and extending Porras v. Craig, 675 S.W.2d 503, 506
(Tex. 1984)). In such a circumstance, an additional question will be required. Gilbert
Wheeler, Inc., 449 S.W.3d at 482. The Committee recommends the following language
be used:

If you found that there was no diminishment of the property's
fair market value, or so little diminishment of that value that the
loss is essentially nominal, what amount, if any, should be
awarded to Paul Payne for the intrinsic value of his damaged
property, that is, the ornamental and utilitarian value of the
property?

Consider the following elements of damages, if any, and none
other. You shall not award any sum of money on any element if
you have otherwise, under some other element, awarded a sum
of money for the same loss. That is, do not compensate twice for
the same loss, if any.

193

CHAPTER 13

PJC 13.1

PIC 13.2

PJC 13:3

PJC 13.4

PIC 13.5

ANIMAL INJURY

Owner or Possessor of Animal ...........0... 002 eee eee ee 197
Dangerous Propensity of Domesticated Animal.............. 199
Abnormally Dangerous Domesticated Animal............... 200
Domesticated Animal That Is Not Abnormally Dangerous ..... 202
Wild Animal. ......... 0... cece e 203

195

ANIMAL INJURY PJC 13.1

PJC 13.1 Owner or Possessor of Animal

QUESTION

On the occasion in question, did Don Davis own or possess [describe ani-
mal in question |?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 13.1 should be submitted if there is a dispute about whether
the defendant had control over the animal in question. A defendant may be liable for
injuries caused by an animal owned or possessed by the defendant at the time of the
occasion in question. See Marshall v. Ranne, 511 S.W.2d 255, 259 (Tex. 1974) (identi-
fying status as owner or possessor of animal as first element of negligence claim); see
also Allen v. Albin, 97 S.W.3d 655, 659 (Tex. App.— Waco 2002, no pet.) (setting forth
elements for strict liability and negligence claims and including status as owner or
possessor of animal as first element of each claim).

Domesticated or wild animal. Ifthe defendant owned or possessed the animal in
question on the occasion in question, the court must determine whether the animal is
domesticated or wild. See, e.g., Powers v. Palacios, 794 S.W.2d 493, 497 (Tex. App.—
Corpus Christi-Edinburg 1990), rev'd on other grounds, 813 S.W.2d 489 (Tex. 1991);
Pate v. Yeager, 552 S.W.2d 513, 515-17 (Tex. App.— Corpus Christi-Edinburg 1977,
writ ref d n.r.e.). An animal is wild if it belongs to a category that has not been gener-
ally domesticated and that is likely, unless restrained, to cause personal injury. See
Pate, 552 S.W.2d at 515; see also Restatement (Third) of Torts § 22(b) (2010). If the
court determines that the animal is domesticated, PJC 13.2 should be submitted; if it
finds the animal wild, PJC 13.5 should be submitted. The Committee recognizes that
the determination whether an animal is domesticated or wild could give rise to a fact
issue. Although the court is to resolve the issue, it might be proper to submit an advi-
sory question to the jury. See, e.g., Transcontinental Insurance Co. v. Crump, 330
S.W.3d 211, 227-32 (Tex. 2010) (party has right to submit jury question on reason-
ableness and necessity of claimant's attorney's fees when fact question exists, despite
statutory language providing that court “shall apportion and award" fees).

Premises liability. Additional consideration should be given to whether a prem-
ises liability standard might apply based on the location and circumstances of the
underlying incident. See, e.g., Labaj v. Vanhouten, 322 S.W.3d 416 (Tex. App.—Ama-
rillo 2010, pet. denied). A party might also choose to submit the case on several theo-
ries of liability, including premises liability. See, e.g., Pfeffer v. Simon, No. 05-02-

197

PJC 13.1 ANIMAL INJURY

01130-CV, 2003 WL 1545084 (Tex. App.—Dallas Mar. 26, 2003, no pet.) (mem. op.)
(plaintiffs sued for strict liability, negligence, and premises liability for dog-bite inju-
ries arising from plaintiff's visit to defendants’ home). For submission of the case
under a premises liability theory, see the current edition of State Bar of Texas, Texas
Pattern Jury Charges—Malpractice, Premises & Products ch. 66.

198

ANIMAL INJURY PJC 13.2

PJC 13.2 Dangerous Propensity of Domesticated Animal

QUESTION

On the occasion in question, did [describe animal in question] have danger-
ous propensities abnormal to its class?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. Ifthe court determines that the animal in question is domesticated,
PJC 13.2 should be used if there is a dispute whether it has dangerous propensities
abnormal to its class. See Marshall v. Ranne, 511 S.W.2d 255, 258—59 (Tex. 1974), in
which the court explains that claims for damages caused by vicious animals are gov-
erned by principles of strict liability, and claims for damages caused by nonvicious
animals are governed by negligence principles. Although the court used the term
“vicious,” it did not define the term. However, it did state that the Restatement (First)
of Torts § 509 (1938) correctly states the liability standard (see Marshall, 511 S.W.2d
at 258), and that provision implicitly defines “vicious” as having “dangerous propensi-
ties abnormal to its class." Note that the Restatement (Third) of Torts (2010) uses the
phrase “dangerous propensities abnormal to its class" in lieu of “vicious.”

199

PJC 13.3 ANIMAL INJURY

PJC 13.3 Abnormally Dangerous Domesticated Animal

QUESTION

On the occasion in question, were [describe animal in question|'s dangerous
propensities a producing cause of Paul Payne’s injuries?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 13.3 should be used when the animal in question is found to
have abnormally dangerous propensities that allegedly caused the injuries. See Mar-
shall v. Ranne, 511 S.W.2d 255, 258—59 (Tex. 1974) (suits for damages caused by
vicious animals are governed by principles of strict liability).

Conditioning instruction. A party may choose to submit the issues under both
strict liability and negligence liability standards regardless of the jury's finding regard-
ing the alleged dangerous propensities of the animal in question. In such circum-
stances, no conditioning instruction would be submitted as part of either PJC 13.3 or
PJC 13.4. However, if a party prefers that the jury make a single liability finding, the
following instruction may be submitted as a predicate to PJC 13.3:

If, in answer to Question [question regarding dangerous
propensities], you found that [describe animal in question] had dan-
gerous propensities abnormal to its class, then answer the following
question. Otherwise, do not answer the following question.

Producing cause. PJC 13.3 should be submitted with the definition of producing
cause:

"Producing cause" means a cause that was a substantial factor in
bringing about the [injury] [occurrence], and without which the
[injury] [occurrence] would not have occurred. There may be more
than one producing cause.

See the current edition of State Bar of Texas, Texas Pattern Jury Charges—Malprac-
tice, Premises & Products PJC 70.1.

200

ANIMAL INJURY PJC 13.3

v. McKay, 55 S.W.2d 865, 866 (Tex. App.—EI Paso 1932, no writ). The Committee
notes that Marshall predates Texas's adoption of comparative responsibility and takes
no position on the remaining viability of the court's holding in this respect.

201

PJC 13.4 ANIMAL INJURY

PJC 13.4 Domesticated Animal That Is Not Abnormally Dangerous

QUESTION

On the occasion in question, did the negligence, if any, of any of those
named below proximately cause Paul Payne's injuries?

Answer “Yes” or “No” for each of the following:

1l. Don Davis

2. Paul Payne

COMMENT

When to use. PJC 13.4 should be given when the domesticated animal that
caused the injuries did not have dangerous propensities abnormal to its class. See Mar-
shall v. Ranne, 511 S.W.2d 255, 259 (Tex. 1974) (possessor of nonvicious animal may
be liable for negligent handling of animal).

Negligence and proximate cause. This question should be submitted with the
definitions of negligence, PJC 2.1, and proximate cause, PJC 2.4.

Plaintiff's negligence/assumption of risk. The plaintiff's conduct in relation to
the animal in question might be subject to a comparative responsibility allocation. But
see Marshall, 511 S.W.2d at 258 (negligence in failing to discover dangerous animal
or take precautions against possible harm will not reduce plaintiff's recovery, but vol-
untary assumption of risk of harm might be valid defense to liability); see also Moore
v. McKay, 55 S.W.2d 865, 866 (Tex. App.—El Paso 1932, no writ). The Committee
notes that Marshall predates Texas's adoption of comparative responsibility and takes
no position on the remaining viability of the court's holding in this respect.

202

ANIMAL INJURY PJC 13.5

PJC 13.5 Wild Animal

QUESTION
On the occasion in question, was a dangerous propensity of [describe animal
in question] a producing cause of Paul Payne's injuries?

In order to find that a dangerous propensity of [describe animal in question]
was a producing cause of Paul Payne's injuries, you must find that the danger-
ous propensity was characteristic of its class of wild animals.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 13.5 should be given if the court determines that the animal in
question is a wild animal. See, e.g., Powers v. Palacios, 794 S.W.2d 493, 497 (Tex.
App.—Corpus Christi-Edinburg 1990), rev'd on other grounds, 813 S.W.2d 489 (Tex.
1991); Pate v. Yeager, 552 S.W.2d 513, 515-17 (Tex. Civ. App.—Corpus Christi-
Edinburg 1977, writ ref'd n.r.e.). An animal is wild if it belongs to a category that has
not been generally domesticated and that 1s likely, unless restrained, to cause personal
injury. Restatement (Third) of Torts § 22(b) (2010); see also Powers, 794 S.W.2d at
497 (citing Black's Law Dictionary definitions for distinguishing between wild and
domesticated animals). If the court determines that the animal is wild, the defendant is
strictly liable for injuries caused by the animal. See Marshall v. Ranne, 511 S.W.2d
255 (Tex. 1974); see also Nicholson v. Smith, 986 S.W.2d 54 (Tex. App.—San Antonio
1999, no pet.) (discussing rule of strict liability for acts of wild animals that one has
reduced to one's possession or if one has introduced a nonindigenous animal into the
area).

Producing cause. PJC 13.5 should be submitted with the definition of producing
cause:

"Producing cause" means a cause that was a substantial factor in
bringing about the [injury] [occurrence], and without which the [injury]
[occurrence] would not have occurred. There may be more than one
producing cause.

See the current edition of State Bar of Texas, Texas Pattern Jury Charges—Malprac-
tice, Premises & Products PJC 70.1.

Plaintiff's negligence/assumption of risk. The plaintiff's conduct in relation to
the animal in question might be subject to a comparative responsibility allocation. But

203

PJC 13.5 ANIMAL INJURY

see Marshall, 511 S.W.2d at 258 (negligence in failing to discover dangerous animal
or take precautions against possible harm will not reduce plaintiff's recovery, but vol-
untary assumption of risk of harm might be valid defense to liability); see also Moore
v. McKay, 55 S.W.2d 865, 866 (Tex. App.—El Paso 1932, no writ). The Committee
notes that Marshall predates Texas's adoption of comparative responsibility and takes
no position on the remaining viability of the court's holding in this respect.

204

CHAPTER 14

PJC 14.1

DEFENSES

Limitations— Tolling by Diligence in Service

205

DEFENSES PJC 14.1

PJC 14.1 Limitations— Tolling by Diligence in Service

QUESTION
Did Paul Payne, or someone acting on his behalf, exercise diligence to have
Don Davis served?

The standard of diligence required is that diligence to procure service which
an ordinarily prudent person would have used under the same or similar cir-
cumstances. The duty to use diligence continues from the time suit was filed
against Don Davis on [date] until Don Davis was served on [date].

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. The above question and instruction should be used when the plain-
tiff filed a petition within the applicable limitations period but did not serve the defen-
dant until after limitations expired, the defendant has pleaded the affirmative defense
of limitations, and the plaintiff has offered evidence of due diligence in effecting ser-
vice. The court will insert the appropriate dates in the brackets contained in the above
instruction.

If the petition is filed within the applicable limitations period, service outside the
limitations period may still be valid if the plaintiff exercises due diligence in procuring
service on the defendant. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009); Gant v.
DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam) (citing Zale Corp. v. Rosen-
baum, 520 S.W.2d 889, 890) (Tex. 1975) (per curiam)). When service is diligently
effected after limitations have expired, the date of service will relate back to the date
of filing. Proulx v. Wells, 235 S.W.3d 213, 215-16 (Tex. 2007) (per curiam); Gant, 786
S.W.2d at 260.

When the defendant has pleaded the affirmative defense of limitations and has
shown that service was not timely, the burden shifts to the plaintiff to prove diligence.
Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 215-16. Whether the plaintiff exer-
cised due diligence in obtaining service on the defendant, so as to allow the date of ser-
vice to relate back to the date of filing of suit for limitations purposes, is ordinarily a
question of fact. Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 216; Mauricio v.
Castro, 287 S.W.3d 476, 479 (Tex. App.— Dallas 2009, no pet. h.).

Source of definition. “Diligence” is determined by asking “whether the plaintiff
acted as an ordinarily prudent person would have acted under the same or similar cir-
cumstances and was diligent up until the time the defendant was served." Proulx, 235

207

PJC 14.1 DEFENSES

S.W.3d at 216; see Zimmerman v. Massoni, 32 S.W.3d 254, 255-56 (Tex. App.—Aus-
tin 2000, pet. denied) (quoting jury question and definition submitting issue of dili-
gence).

Caveat. Once the defendant has affirmatively pleaded the limitations defense and
shown that service was effected after limitations expired, it is the plaintiff's burden to
present evidence regarding the efforts made to serve the defendant and, also, to explain
every lapse in effort or period of delay. Proulx, 235 S.W.3d at 216. The relevant
inquiry is two-pronged: (1) whether the plaintiff acted as an ordinarily prudent person
would have acted under the same or similar circumstances and (2) whether the plaintiff
acted diligently up until the time the defendant was served. See Proulx, 235 S.W.3d at
216; Mauricio, 287 S.W.3d at 479; Hodge v. Smith, 856 S.W.2d 212, 215 (Tex. App.—
Houston [1st Dist.] 1993, writ denied). In some statutory cases, when the defendant
engages in conduct solely calculated to induce the plaintiff to refrain from or postpone
filing suit, an extra 180 days may be tacked onto the original limitations period. See
the current edition of State Bar of Texas, Texas Pattern Jury Charges—Business, Con-
sumer, Insurance & Employment PJC 102.23 (DTPA/Insurance Code). The Committee
expresses no opinion about whether the same standard of diligence applies to the join-
der of responsible third parties.

208

CHAPTER 15 WORKERS' COMPENSATION—BURDEN OF PROOF ON JUDICIAL

REVIEW
PJC 15.1 Burden of Proof (Comment) .............. 00 cece 211
PJC 15.2 Consideration of Appeals Panel Decision (Comment). ........ 212
PIC 15.3 Weight to Be Given Opinion of Designated Doctor

(Comment)... ec iei E E thane aw eed ES 213

Note

Chapters 15 through 27 are a section of pattern jury charges for workers'
compensation cases. Previous editions of the workers’ compensation PJC volume (see,
e.g., Comm. on Pattern Jury Charges, State Bar of Tex., 2 Texas Pattern Jury Charges—
Workers’ Compensation (2d ed. 1989)) were based on an earlier version of the workers’
compensation act. See Tex. Rev. Civ. Stat. art. 8306, repealed by Acts 1989, 71st Leg.,
2d C.S., ch.1, § 16.01, 1989 Tex. Gen. Laws 114. The legislature repealed that version
of the act when it reformed the workers’ compensation system in 1989. These reforms
created a new regulatory agency, benefits structure, and dispute resolution process. See
generally Texas Mutual Insurance Co. v. Ruttiger, 381 S.W.3d 430 (Tex. 2012); Texas
Workers' Compensation Commission v. Garcia, 893 S.W.2d 504, 510—16 (Tex. 1995)
(discussing changes). The changes were subsequently codified in title 5 of the Texas
Labor Code. Act of May 22, 1993, 73d Leg., R.S., ch. 269, 8 1, 1993 Tex. Gen. Laws
987, 1173. Statutory references in this volume are to the Texas Labor Code.

Injuries occurring before January 1, 1991 (the effective date of the reform bill), are
commonly referred to as “old-law cases." Injuries occurring on or after January 1,
1991, are commonly referred to as “new-law cases.” The legal principles found in
many old-law cases remain applicable to new-law cases. However, as the supreme
court has observed, “Old-law cases can be useful in understanding the new act, but
their relevance to any particular provision requires a careful comparison of the old and
new law." Insurance Co. of State of Pennsylvania v. Muro, 347 S.W.3d 268, 273 (Tex.
2011).

Use of statutory language. The supreme court has held that when liability is
asserted based on a provision of a statute or regulation, jury submission should follow
the statutory language as closely as possible but may be altered somewhat to conform
to the evidence of the case. Spencer v. Eagle Star Insurance Co. of America, 876
S.W.2d 154, 157 (Tex. 1994); Brown v. American Transfer & Storage Co., 601 S.W.2d

209

931, 937 (Tex. 1980). Material terms, however, should not be omitted or substituted.
See Transport Insurance Co. v. Faircloth, 898 S.W.2d 269, 273 (Tex. 1995) (constru-
ing DTPA section 17.46(b)(23), renumbered in 2001 as DTPA 8 17.46(b)(24)). Where
it has been possible to do so in this volume, the Committee has attempted to track the
language of the Texas Workers' Compensation Act or rules adopted by the Division of
Workers’ Compensation of the Texas Department of Insurance (DWC, formerly
TWCC).

210

WORKERS’ COMPENSATION—BURDEN OF PROOF PJC 15.1

PJC 15.1 Burden of Proof (Comment)

An aggrieved party may appeal a final decision of the appeals panel of the Division
of Workers’ Compensation of the Texas Department of Insurance (DWC, formerly
TWCC). Tex. Lab. Code 8 410.251; Tex. Gov't Code 88 2001.171—.178. Issues that
the appeals panel has decided may be tried to the court or to a jury, and the appealing
party bears the burden of proof by a preponderance of the evidence. Tex. Lab. Code
$8 410.303—.304; Morales v. Liberty Mutual Insurance Co., 241 S.W.3d 514, 516
(Tex. 2007).

If the dispute involves compensabihty or eligibility for or the amount of income or
death benefits, the trial court reviews any appealed issues under a modified de novo
standard. Rodriguez v. Service Lloyds Insurance Co., 997 S.W.2d 248, 253 (Tex.
1999); see also Texas Workers’ Compensation Commission v. Garcia, 893 S.W.2d 504,
515 (Tex. 1995).

Traditionally, the claimant carries the burden of proof to validate his claim. Even on
judicial review, when the claimant has the burden of proof, most courts are able to
draw on other areas of law to reach an equitable construction of jury questions. New
for courts and litigants is the drafting of questions when the carrier has appealed and
the claimant has become the defendant. A strict reading of the Texas Labor Code indi-
cates that the carrier must prove a negative, such as proving that the claimant did not
have a disability. See Transcontinental Insurance Co. v. Crump, 330 S. W.3d 211, 226
(Tex. 2010).

While some claimants' attorneys have avoided this type of construction, thinking
that it might confuse a jury, it should be emphasized that the successful claimant who
is now a defendant in the appeal has an absolute right to require the carrier to disprove
the appeals panel findings. See Tex. Lab. Code 8 410.303; Crump, 330 S.W.3d at 226;
Morales, 241 S.W.3d at 516.

Therefore, in a suit for judicial review, the placement of the burden of proof is
determined by who the “aggrieved” (see Tex. Lab. Code § 410.251) and appealing
party is shown to be in the pleadings. In a case in which each party has appealed sepa-
rately from adverse determinations by the DWC, each party will bear the burden of
proof on the issue from which it has appealed.

To that end, the Committee has recommended two versions of many of the ques-
tions in this volume: one in which the burden of proof has been placed on the
employee as the appealing party, and the other in which the burden of proof has been
placed on the carrier as the appealing party. In occasional cases, each party may bear
the burden of proof to establish the answer for which it advocates. See PJC 23.9.

211

PJC 15.2 WORKERS? COMPENSATION—BURDEN OF PROOF

PJC 15.2 Consideration of Appeals Panel Decision (Comment)

In a jury trial, the court, before submitting the case to the jury, shall inform the jury
in the court's instructions, charge, or questions to the jury of the appeals panel deci-
sion on each of the disputed issues. Tex. Lab. Code § 410.304(a). The fact finder may
consider, but is not bound by, the appeals panel decision. Morales v. Liberty Mutual
Insurance Co., 241 S.W.3d 514, 516 (Tex. 2007); see also Texas Workers’ Compensa-
tion Commission v. Garcia, 893 S.W.2d 504, 515 (Tex. 1995).

If the appeals panel does not issue a decision in accordance with Tex. Lab. Code
§ 410.204, the decision of the hearing officer becomes final and is the final decision of
the appeals panel. Tex. Lab. Code § 410.204(c).

The following are examples of possible instructions informing the jury of the
appeals panel decision.

Sample A

The Texas Department of Insurance, Division of Workers' Com-
pensation, determined that Paul Payne suffered disability from Janu-
ary 24, 2013 through July 9, 2013.

Sample B

The Texas Department of Insurance, Division of Workers' Com-
pensation, determined that Paul Payne did not suffer the total and
permanent loss of use of his right and left hands at or above the
wrists and also determined that Paul Payne did not suffer the total
and permanent loss of use of his right and left feet at or above the
ankles.

212

WORKERS’ COMPENSATION—BURDEN OF PROOF PJC 15.3

PJC 15.3 Weight to Be Given Opinion of Designated Doctor
(Comment)

A designated doctor is one who has been appointed by mutual agreement of the par-
ties or by the Division of Workers' Compensation of the Texas Department of Insur-
ance (DWC, formerly TWCC) to recommend a resolution of a dispute about the
medical condition of an injured employee. Tex. Lab. Code § 401.011(15).

The Texas Workers’ Compensation Act provides that the report of the designated
doctor has presumptive weight unless the preponderance of the other medical evidence
is to the contrary. Tex. Lab. Code § 408.1225(c). However, the supreme court has writ-
ten that the opinion of the designated doctor on judicial review is accorded no special
weight. Texas Workers' Compensation Commission v. Garcia, 893 S.W.2d 504, 515
(Tex. 1995); see also Financial Insurance Co. v. Ragsdale, 166 S.W.3d 922, 928 (Tex.
App.—El Paso 2005, no pet.). Accordingly, the Committee recommends that no
instruction be given to the jury regarding the weight to be given the opinion of a desig-
nated doctor.

213

CHAPTER 16

PJC 16.1

PJC 16.1A

PJC 16.1B

PJC 16.2

PJC 16.2A

PJC 16.2B

PJC 16.3

PJC 16.3A

PJC 16.3B

PJC 16.4

PJC 16.4A

PJC 16.4B

PJC 16.5

PJC 16.6

PJC 16.6A

PJC 16.6B

PJC 16.7

WORKERS’ COMPENSATION—EMPLOYMENT

Employee—Question. ....... 0... cece eee eee 217
Employee—Question—When Claimant Appeals .......... 217
Employee—Question—When Carrier Appeals............ 217

Independent Contractor—Question. .............2..0 eee eee 219

Independent Contractor—Question— When Claimant

Appeals: i.e be e ee RR RAI RR RR Rcs 219

Independent Contractor—Question— When Carrier

Appeals. arere k ettet a e A NUR da Fee o te wien on 219
Borrowed Employee—Question............ 00 cee lessen 222

Borrowed Employee—Question—When Claimant
Appeals eed t se cho Ree ee dander edo qa ed 222

Borrowed Employee—Question— When Carrier Appeals ...222
Excluded Employment—Question ............0.0 cece ee eee 224

Excluded Employment—Question— When Claimant

Appeals 4 ca kie E ace aoe a dni 224

Excluded Employment—Question—When Carrier

Appeals: 4. see oan oes neha ee re RE E e nee 224
Employer with More Than One Business—Question ......... 226
Out-of-State Employment and Injury—Question............. 228

Out-of-State Employment and Injury—Question—When
Claimant Appeals .......... 00... cece cece tenes 228

Out-of-State Employment and Injury—Question—When Carrier
Appeals 2e px cee had Dea PEG e e A hae 228

Subcontracting to Avoid Compensation Liability—Question ... 230

215

216

PJC 16.7A

PJC 16.7B

Subcontracting to Avoid Compensation Liability—
Question—When Claimant Appeals ..... o...on anaana

Subcontracting to Avoid Compensation Liability—
Question—When Carrier Appeals...............00.000 05

WORKERS’ COMPENSATION—EMPLOYMENT PJC 16.1

PJC 16.1 Employee—Question
PJC 16.1A Employee—Question—When Claimant Appeals

QUESTION

Was Paul Payne an employee of ABC Company at the time of his injury?

“Employee” means a person in the service of another under a contract of
hire, whether express or implied, or oral or written.

Answer “Yes” or “No.”

Answer:

PJC 16.1B Employee—Question—When Carrier Appeals
QUESTION.
Was Paul Payne not an employee of ABC Company at the time of his injury?
[Insert PJC 16.14 definition of "employee. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 16.1 is required if there is a dispute about whether the worker
1s an employee of the subscribing employer. It may be submitted when the question
involves the nature of the employment relationship between the injured party and the
alleged employer. See, e.g., Morales v. Liberty Mutual Insurance Co., 241 S.W.3d 514,
519 (Tex. 2007).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of definition. See Tex. Lab. Code § 401.012. The definition of
"employee" differs from that in PJC 10.1 because this chapter uses the statutory defi-
nition. However, case law might support using the definition in PJC 10.1 when right to
control is in issue.

Control of details of work. The right of control over the details of the work is the
determinative test of whether the worker is an employee and can qualify for compen-

217

PJC 16.1 WORKERS’ COMPENSATION—EMPLOYMENT

sation under the Texas Labor Code or is an independent contractor. Turnbough v.
United Pacific Insurance Co., 666 S.W.2d 489, 492 (Tex. 1984) (worker originally
hired as independent contractor was employee; withholding for workers’ compensa-
tion was some evidence); Continental Insurance Co. v. Wolford, 526 S.W.2d 539, 541
(Tex. 1975) (bricklayer furnishing helper and equipment and paid on a per-brick basis
was independent contractor; right of control, not right to terminate, is dispositive);
Hartford Accident & Indemnity Co. v. Hooten, 531 S.W.2d 365, 367 (Tex. App.—San
Antonio 1975, writ ref'd n.r.e.) (nurse's aide privately employed but helping with
other patients in nursing home in return for meals not an employee); Allstate Insur-
ance Co. v. Scott, 511 S.W.2d 412, 414 (Tex. App.—El Paso 1974, writ ref'd n.re.)
(exercise of control of details of work and acquiescence therein almost at time of acci-
dent was sufficient evidence of control); Goodnight v. Zurich Insurance Co., 416
S.W.2d 626, 630 (Tex. App.—Dallas 1967, writ ref'd n.r.e.) (applying factors from
Anchor Casualty Co. v. Hartsfield, 390 S.W.2d 469 (Tex. 1965)).

Independent contractor. Ifthe evidence suggests the worker may be an indepen-
dent contractor rather than an employee, see PJC 16.2.

Evidence of more than one injury. If there is evidence of more than one injury,
the date of the injury inquired about should be included in the question.

Temporary direction. If the worker has been temporarily ordered or directed to
perform tasks that are different from his ordinary duties or that are unusual or extraor-
dinary, see PJC 17.3.

218

WORKERS’ COMPENSATION—EMPLOYMENT PJC 16.2

PJC 16.2 Independent Contractor—Question

PJC 16.2A Independent Contractor—Question—When Claimant
Appeals

QUESTION

Was Paul Payne not an independent contractor of ABC Company at the time
of his injury?

“Independent contractor” means a person who contracts to perform work or
provide a service for the benefit of another and who ordinarily—

1. acts as the employer of any employee of the contractor by paying
wages, directing activities, and performing other similar functions character-
istic of an employer-employee relationship;

2. is free to determine the manner in which the work or service is per-
formed, including the hours of labor of or method of payment to any
employee;

3. is required to furnish or to have employees, if any, furnish neces-
sary tools, supplies, or materials to perform the work or service; and

4. possesses the skills required for the specific work or service.
Answer “Yes” or “No.”

Answer:

PJC 16.2B Independent Contractor—Question—When Carrier
Appeals

QUESTION

Was Paul Payne an independent contractor of ABC Company at the time of
his injury?

[Insert PJC 16.2A definition of “independent contractor. "]

Answer “Yes” or “No.”

Answer:

219

PJC 16.2 WORKERS’ COMPENSATION—EMPLOYMENT

COMMENT

When to use. If the question is whether the worker is an employee of the sub-
scribing employer, PJC 16.1 should be used. If the question is whether the worker is an
independent contractor, PJC 16.2 should be used. In cases involving employee/inde-
pendent contractor disputes outside of the workers’ compensation context, see PJC
10.5, 10.8, and 10.9.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of definitions. See Tex. Lab. Code § 406.121(2). The definition of *inde-
pendent contractor" differs from that in PJC 10.8, which is based on case law. Con-
cerning the definition or characteristics of an “independent contractor" as
distinguished from an “employee,” see Thompson v. Travelers Indemnity Co. of Rhode
Island, 789 S.W.2d 277 (Tex. 1990); Anchor Casualty Co. v. Hartsfield, 390 S.W.2d
469 (Tex. 1965); and Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex. 1964).

Control of details of work. The right of control over the details of the work is the
determinative test of whether the worker is an employee and can qualify for compen-
sation under the Texas Labor Code or is an independent contractor. Turnbough v.
United Pacific Insurance Co., 666 S.W.2d 489, 492 (Tex. 1984) (worker originally
hired as independent contractor was employee; withholding for workers’ compensa-
tion was some evidence); Continental Insurance Co. v. Wolford, 526 S.W.2d 539, 541
(Tex. 1975) (bricklayer furnishing helper and equipment and paid on a per-brick basis
was independent contractor; right of control, not right to terminate, is dispositive);
Anchor Casualty Co., 390 S.W.2d at 471 (that work required special skill, that worker
furnished his own tools, that he was doing a particular job according to predetermined
plans, that he had no set work hours, that he was paid by the job, and that he was not
on the payroll or on the Social Security and income tax withholding rolls established
that he was not an employee); Hartford Accident & Indemnity Co. v. Hooten, 531
S.W.2d 365, 367 (Tex. App.—San Antonio 1975, writ ref'd n.r.e.) (nurse's aide pri-
vately employed but helping with other patients in nursing home in return for meals
not employee); Allstate Insurance Co. v. Scott, 511 S.W.2d 412, 414 (Tex. App.—El
Paso 1974, writ ref d n.r.e.) (exercise of control of details of work and acquiescence
therein almost at time of accident was sufficient evidence of control).

Independent contractor by written agreement. If there was a written contract
establishing an independent contractor relationship between the worker and the
alleged employer but there is evidence that, in practice, actual control by the alleged
employer over the work was persistently exercised, the following instruction should be
submitted immediately after the definition of “independent contractor":

A written contract expressly excluding any right of control over
the details of the work is conclusive as to Paul Payne's status as an
independent contractor unless it was a subterfuge from the beginning

220

WORKERS’ COMPENSATION—EMPLOYMENT PJC 16.2

or was persistently ignored or was modified by subsequent express or
implied agreement of the parties.
See Newspapers, Inc., 380 S.W.2d 582; Elder v. Aetna Casualty & Surety Co., 236

S.W.2d 611 (Tex. 1951); Travelers Insurance Co. v. Ray, 262 S.W.2d 801 (Tex.
App.—Eastland 1953, writ ref d).

Evidence of more than one injury. If there is evidence of more than one injury,
the date of the injury inquired about should be included in the question.

221

PJC 16.3 WORKERS’ COMPENSATION—EMPLOYMENT

PJC 16.3 Borrowed Employee—Question

PJC 16.3A Borrowed Employee—Question—When Claimant
Appeals

QUESTION

Was Paul Payne a borrowed employee of XYZ Company while loading the
truck?

One who would otherwise be in the general employment of one employer is
a “borrowed employee” of another employer if such other employer or his
agents have the right to direct and control the details of the particular work
inquired about.

Answer “Yes” or “No.”

Answer:

PJC 16.3B Borrowed Employee—Question—When Carrier Appeals

QUESTION

Was Paul Payne not a borrowed employee of XYZ Company while loading
the truck?

[Insert PJC 16.3A definition of “borrowed employee. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 16.3 should be used to submit disputes about the worker's sta-
tus as a “borrowed employee" (also called “loaned employee" or “special employee").
For cases in which a party seeks to impose or rebut vicarious liability for the conduct
of an employee or borrowed employee outside of the workers’ compensation context,
see PJC 10.2—10.4.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

222

WORKERS’ COMPENSATION—EMPLOYMENT PJC 16.3

Source of definition. A contract regarding workers’ compensation coverage may
moot the issue of borrowed employee status for the purposes of determining liability
for benefits. See, e.g., Wingfoot Enterprises v. Alvarado, 111 S.W.3d 134, 135-36
(Tex. 2003). Absent an agreement regarding workers’ compensation coverage, the
right of control over the details of the work is the determinative test of whether respon-
sibility for the injury rests with the original employer or the employer to whom the
employee was loaned. Highlands Underwriters Insurance Co. v. Martinez, 441 S.W.2d
666, 667 (Tex. App.—Waco 1969, writ ref'd n.r.e.); see also J.A. Robinson Sons, Inc.
v. Wigart, 431 S.W.2d 327, 330 (Tex. 1968), overruled on other grounds by Sanchez v.
Schindler, 651 S.W.2d 249, 251 (Tex. 1983); Texas Property & Casualty Guaranty
Assn v. National American Insurance Co., 208 S.W.3d 523, 542-44 (Tex. App.—Aus-
tin 2006, pet. denied); Home Indemnity Co. v. Draper, 504 S.W.2d 570, 577—79 (Tex.
App.—Houston [1st Dist.] 1973, writ ref'd n.r.e.).

223

PJC 16.4 WORKERS’ COMPENSATION—EMPLOYMENT

PJC 16.4 Excluded Employment—Question

PJC 16.4A Excluded Employment—Question—When Claimant
Appeals

QUESTION

Was Paul Payne not performing services as a domestic worker at the time of
such injury?

A “domestic worker” is a person who is primarily employed in and about the
maintenance of a home itself. Such a person is a household worker working in
or around a house for the upkeep thereof and for the care, comfort, and conve-
nience of the occupants.

Answer “Yes” or “No.”

Answer:

PJC 16.4B Excluded Employment—Question—When Carrier
Appeals

QUESTION

Was Paul Payne performing services as a domestic worker at the time of
such injury?

[Insert PJC 16.4A definition of “domestic worker. ”]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. A contract of employment may provide for services in two capaci-
ties, one that is covered by workers’ compensation and one that is not. If it is disputed
whether the worker is covered, the question is in which capacity he was working at the
time of the injury. Hardware Dealers’ Mutual Fire Insurance Co. v. King, 426 S.W.2d
215, 217-18 (Tex. 1968); Aetna Casualty & Surety Co. v. Estate of Thomas, 547
S.W.2d 694, 696—97 (Tex. App.— Tyler 1977, writ ref'd n.r.e.).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

224

WORKERS’ COMPENSATION—EMPLOYMENT PJC 16.4

Source of instruction and definition. PJC 16.4 is based on Tex. Lab. Code
§ 406.091, which excludes from coverage persons employed as domestic workers or
casual workers engaged in employment incidental to a personal residence, persons
covered by a method of compensation established under federal law, and certain farm
or ranch employees. See Robertson v. Home State County Mutual Insurance Co., 348
S.W.3d 273, 280 (Tex. App.—Fort Worth 2011, pet. denied) (the term “‘domestic
employees' can be given a definite and certain legal meaning: persons engaged in
employment incidental to a personal residence").

Casual employee. If it is disputed whether the worker was a casual employee, the
phrase casual employee should be substituted for domestic worker in the above ques-
tion, and the instruction and definition should be replaced with the following:

A person who is a casual employee engaged in employment inci-
dental to a personal residence is not considered an employee under
the Texas Workers' Compensation Act.

Farm and ranch employees. If the employee is a farm and ranch employee, see
Tex. Lab. Code $8 406.161—.165.

Evidence of more than one injury. If there is evidence of more than one injury,
the date of the injury inquired about should be included in the question.

Temporary direction. If the evidence raises the question whether the worker was
temporarily performing excluded services under the direction or orders of his supervi-
sor, the additional instruction at PJC 17.3 should be included.

Status as employee disputed. If the worker's status as an employee is disputed,
PJC 16.4 should be conditioned on the answer to PJC 16.1 or 16.2, as applicable.

225

PJC 16.5 WORKERS’ COMPENSATION—EMPLOYMENT

PJC 16.5 Employer with More Than One Business—Question

QUESTION
Was Paul Payne performing services for ABC Company in its automobile
repair business at the time of the injury?

An employee cannot be performing services for more than one business at
the time of the injury.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 16.5 should be used if the employer operates two or more sep-
arate and distinct businesses, one that is covered by workers' compensation and one
that 1s not, and if the worker has been shown in answer to PJC 16.1 to be an employee
of that employer. The inquiry is whether the worker at the time of injury was perform-
ing services in the business not found to be the employer by the appeals panel.

If there is a dispute about whether the employer's businesses are separate and dis-
tinct and only one of the businesses is covered by workers' compensation, the follow-
ing question should be submitted in addition to PJC 16.5:

At the time of any injury to Paul Payne, did ABC Company oper-
ate its automobile repair business separately and distinctly from its
mercantile business?

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of questions. An employer cannot cover some of his employees with
workers’ compensation insurance and leave others uncovered in the same general
business or enterprise. Port Elevator-Brownsville, L.L.C. v. Casados, 358 S.W.3d 238,
241-42 (Tex. 2012); Barron v. Standard Accident Insurance Co., 53 S.W.2d 769, 770
(Tex. 1932). If he has two or more separate and distinct businesses, however, he may
obtain coverage for one business but not for the others. Pacific Indemnity Co. v. Jones,
327 S.W.2d 441, 443 (Tex. 1959); see also Texas Workers' Compensation Insurance
Fund v. DEL Industrial, Inc., 35 S.W.3d 591, 595 (Tex. 2000); Bradley v. Phillips
Chemical Co., 484 F. Supp. 2d 604, 615 (S.D. Tex. 2007). Whether the businesses are
in fact separate and distinct may be a question of fact. Maryland Casualty Co. v. Sulli-
van, 334 S.W.2d 783 (Tex. 1960). In light of these authorities, one or more of the
above questions may be appropriate.

226

WORKERS’ COMPENSATION—EMPLOYMENT PJC 16.5

Evidence of more than one injury. If there is evidence of more than one injury,
the date of the injury inquired about should be included in the question.

Status as employee disputed. If the worker's status as an employee is disputed,
PJC 16.5 should be conditioned on the answer to PJC 16.1 or 16.2, as applicable.

227

PJC 16.6 WORKERS’ COMPENSATION—EMPLOYMENT

PJC 16.6 Out-of-State Employment and Injury—Question

PJC 16.6A Out-of-State Employment and Injury—Question—When
Claimant Appeals

QUESTION
Did Paul Payne have significant contacts with Texas at the time of his
injury?
An employee has significant contacts with Texas if the employee was hired
or recruited in this state and the employee—
l. was injured not later than one year after the date of hire, or

2. has worked in Texas for at least ten working days during the twelve
months preceding the date of injury.

Answer “Yes” or “No.”

Answer:

PJC 16.6B Out-of-State Employment and Injury—Question—When
Carrier Appeals

QUESTION

Did Paul Payne lack significant contacts with Texas at the time of his
injury?

[Insert PJC 16.6A instruction on "significant contacts. ”]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 16.6 applies to all out-of-state injuries in which a claim is
made in Texas for workers’ compensation benefits and the worker has not elected to
receive benefits from another state. A worker injured in another state can recover in
Texas under workers’ compensation laws if he was hired or recruited in Texas and (1)
was injured not later than one year after the date of hire or (2) has worked in Texas for
at least ten working days during the twelve months preceding the date of injury. Tex.

228

WORKERS’ COMPENSATION—EMPLOYMENT PJC 16.6

Lab. Code § 406.071. Note that these are alternative conditions, and either will suffice
to entitle the worker to compensation provided that the injury shall have occurred
within one year from the date he left Texas. See American States Insurance Co. v.
Garza, 657 S.W.2d 522 (Tex. App.— Corpus Christi-Edinburg 1983, no writ).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question. PJC 16.6 is based on Tex. Lab. Code § 406.071.

229

PJC 16.7 WORKERS’ COMPENSATION—EMPLOYMENT

PJC 16.7 Subcontracting to Avoid Compensation Liability—
Question

PJC 16.7A Subcontracting to Avoid Compensation Liability—
Question—When Claimant Appeals

QUESTION

Did ABC Company subcontract the whole or any part of its work to XYZ
Company with the intent to avoid any liability as an employer under the Texas
Workers' Compensation Act?

Answer “Yes” or “No.”

Answer:

PJC 16.7B Subcontracting to Avoid Compensation Liability—
Question—When Carrier Appeals

QUESTION

Did ABC Company not subcontract the whole or any part of its work to XYZ
Company with the intent to avoid any liability as an employer under the Texas
Workers’ Compensation Act?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 16.7 assumes that the worker was an employee of an indepen-
dent contractor (XYZ Company) to whom the subscriber (ABC Company) had subcon-
tracted some or all of its work. An affirmative finding on this question would establish
coverage by the subscriber’s compensation carrier, notwithstanding the independent
contract. See Traders & General Insurance Co. v. Frozen Food Express, 255 S.W.2d
378 (Tex. App.—Austin 1953, writ ref'd n.re.); Texas Employers’ Insurance Assn v.
Harper, 249 S.W.2d 677 (Tex. App.—Dallas 1952, writ ref'd n.re.); United States
Fidelity & Guaranty Co. v. Hall, 224 S.W.2d 268 (Tex. App.—Austin 1949, writ
dism'd); see also Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 439 (Tex.
2009).

230

WORKERS’ COMPENSATION—EMPLOYMENT PJC 16.7

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question. PJC 16.7 is based on Tex. Lab. Code § 406.124.

Subletting to plaintiff as subcontractor. Labor Code section 406.124, by its
terms, applies only when an injury is sustained by “any employee of such subcontrac-
tor" See Houston Fire & Casualty Insurance Co. v. Farm Air Service, Inc., 325
S.W.2d 860, 865 (Tex. App.—Austin 1959, writ ref'd n.r.e.).

Employee of subcontractor. For a question on “employee,” see PJC 16.1.

Caveat: written contract to provide benefits. Tex. Lab. Code § 406.123 allows
a prime contractor to provide, through written contract, the subcontractor and its
employees with workers’ compensation benefits, with such subcontractor and its
employees becoming by statute the employees of the prime contractor. See Entergy
Gulf States, Inc., 282 S.W.3d at 436.

231

CHAPTER 17

PIG 17.1

PJC 17.1A

PJC 17.1B

PIC 172

PIC TTLAA

PJC 17.2B

PJC 17.3

PJC 17.4

PIG 17,5

PJC 17.6

PIC LET

PJC 17.8

WORKERS' COMPENSATION—COURSE AND SCOPE
OF EMPLOYMENT

Injury in Course and Scope of Employment—Question ....... 235

Injury in Course and Scope of Employment—Question—

When Claimant Appeals ........... 00... cee eee eee 235

Injury in Course and Scope of Employment—Question—

When Carrier Appeals... 235
Heart Attack—Injury—Question ............0 0... c eee eee 238

Heart Attack—Injury—Question—When Claimant
Appeals. isis esis eadem Ea bey per d ERAS 238

Heart Attack—Injury—Question— When Carrier Appeals... 238

Not in Regular Course and Scope of Employment, or
Temporary Direction—Instruction .............. 0000s ee eee 240

Personal Comfort—Instruction. ........ lees 241

Employee Injured While Engaged in Recreational, Social, or
Athletic Activities—Instrucüon. «eese eee rere ee 242

Employee Injured While Traveling (Comment).............. 243

Employee Injured While Traveling to or from Work—
lutonopo MTM —— 244

Employee Injured While Traveling with Dual Purpose—
[instruction £y spacey nha ERR ERRÉ dA Y RP ee Rh eet 246

233

WORKERS’ COMPENSATION—COURSE & SCOPE OF EMPLOYMENT PJC 17.1

PJC 17.1 Injury in Course and Scope of Employment—Question

PJC 17.14 Injury in Course and Scope of Employment—Question—
When Claimant Appeals

QUESTION

Did Paul Payne receive an injury in the course and scope of his employment
with ABC Company on October 12, 2012?

"Injury" means damage or harm to the physical structure of the body and
such diseases or infections as naturally result from such damage or harm.

"Injury" also includes any incitement, acceleration, or aggravation of any
disease, infirmity, or condition, previously or subsequently existing, by reason
of such damage or harm.

"Injury" also includes any damage or harm arising out of the medical or sur-
gical treatment instituted to cure or relieve the effects of the injury.

"Injury" also includes any mental or nervous disorder that impairs the use or
control of the physical structure of the body.

"Injury in the course and scope of employment" means any injury suffered
while engaged in an activity of any kind or character that has to do with and
originates in the work, business, trade, or profession of the employer and that is
performed by an employee while engaged in or about the furtherance of the
affairs or business of his employer, whether on the employer's premises or
elsewhere.

Answer “Yes” or “No.”

Answer:

PJC 17.1B Injury in Course and Scope of Employment—Question—
When Carrier Appeals

QUESTION

Did Paul Payne fail to receive an injury in the course and scope of his
employment with ABC Company on October 12, 2012?

[Insert PJC 17.1A definitions of “injury. ”]

235

PJC 17.1 WORKERS’ COMPENSATION—COURSE & SCOPE OF EMPLOYMENT

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 17.1 should be used if there is a dispute about whether the
injury was received in the course and scope of employment. PJC 17.1 may be condi-
tioned on the answer to PJC 16.1 if applicable. If injury is undisputed, and the only
issue is whether it originated in the course and scope of employment, the definitions of
"injury" may be omitted. Only the parts of the definitions raised by the evidence
should be submitted. If there is evidence that the employee was engaged in recre-
ational, social, or athletic activities at the time of injury, the instruction at PJC 17.5
should be included.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and definitions. The definitions of “injury” and “course and
scope of employment” are found in the Code. See Tex. Lab. Code § 401.011(12), (26).

For the language dealing with incitement, acceleration, or aggravation, see McCart-
ney v. Aetna Casualty & Surety Co., 362 S.W.2d 838, 839 (Tex. 1962); State Office of
Risk Management v. Adkins, 347 S.W.3d 394, 399 (Tex. App.—Dallas 2011, no pet.);
State Office of Risk Management v. Escalante, 162 S.W.3d 619, 624 (Tex. App.—El
Paso 2005, pet. dism’d); and Gill v. Transamerica Insurance Co., 417 S.W.2d 720, 723
(Tex. App.—Dallas 1967, no writ).

For the language dealing with medical or surgical treatment, see Home Insurance
Co. v. Gillum, 680 S.W.2d 844, 850—51 (Tex. App.— Corpus Christi-Edinburg 1984,
writ ref' d n.r.e.), and Hartford Accident & Indemnity Co. v. Thurmond, 527 S.W.2d
180, 190 (Tex. App.—Corpus Christi-Edinburg 1975, writ ref'd n.r.e.). See also Texas
Workers' Compensation Appeal No. 92538 (Nov. 25, 1992).

For the language dealing with a mental or nervous disorder, see Bailey v. American
General Insurance Co., 279 S.W.2d 315, 318-19 (Tex. 1955). See also Texas Work-
ers’ Compensation Appeal Nos. 950749 (June 21, 1995); 030056 (Feb. 12, 2003);
060176 (Mar. 30, 2006). If a mental or nervous disorder is not accompanied by or does
not follow a physical injury, to avoid confusion with the occupational disease theory of
recovery, the injury should be shown to have resulted from an undesigned and unex-
pected event and be traceable to a definite time, place, and cause. Transportation
Insurance Co. v. Maksyn, 580 S.W.2d 334, 336—38 (Tex. 1979); see also GTE South-
west v. Bruce, 998 S.W.2d 605, 609-11 (Tex. 1999); University of Texas System v.
Schieffer, 588 S.W.2d 602, 605—07 (Tex. App.—Austin 1979, writ ref'd n.r.e.).

236

WORKERS’ COMPENSATION—COURSE & SCOPE OF EMPLOYMENT PJC 17.1

Note that a “mental or emotional injury that arises principally from a legitimate per-
sonnel action, including a transfer, promotion, demotion, or termination, is not a com-
pensable injury.” Tex. Lab. Code § 408.006(b); see Baker v. Cook Children’s
Physician Network, No. 02-07-00174-CV, 2008 WL 553712 (Tex. App.—Fort Worth
Feb. 28, 2008) (not designated for publication).

Date of injury. If there is a dispute about the exact date of the injury, the words
“or about" should be inserted before the date of injury in the question.

Employer's premises. The phrase “whether on the employer's premises or else-
where" in the last paragraph of the definition may be omitted 1f not applicable.

Employee injured while traveling. If the injury occurred while the employee
was traveling, the appropriate travel instructions should be added after the definitions
of “injury.” See PJC 17.7 and 17.8.

Twenty-four-hour or “on call” employee. For a discussion of a twenty-four-
hour or “on call” employee, see Gulf Insurance Co. v. Johnson, 616 S.W.2d 320 (Tex.
App.—Houston [1st Dist.] 1981, writ dism'd by agr.).

Temporary direction. If there is evidence that the employee was temporarily
directed or instructed by his employer to perform services outside the usual course and
scope of the employer's business, see PJC 17.3.

Status as employee disputed. If the worker’s status as an employee is disputed,
PJC 17.1 should be conditioned on the answer to PJC 16.1 or 16.2, as applicable.

Exclusions from course of employment. For exclusions from course of employ-
ment, see chapter 18 in this volume.

237

PJC 17.2 WORKERS’ COMPENSATION—COURSE & SCOPE OF EMPLOYMENT

PJC 17.2 Heart Attack—Injury—Question

PJC 17.24 Heart Attack—Injury—Question—When Claimant
Appeals

QUESTION

Did Paul Payne sustain a compensable injury in the form of a heart attack?
A heart attack is a compensable injury only if—

1. the attack can be identified as occurring at a definite time and place
and caused by a specific event occurring within the course and scope of the
employee’s employment; and

2. the preponderance of the medical evidence indicates that work,
rather than the natural progression of a preexisting heart condition or dis-
ease, was a substantial contributing factor of the attack; and

3. the attack was not triggered solely by emotional or mental stress
factors, unless it was precipitated by a sudden stimulus.

Answer “Yes” or “No.”

Answer:

PJC 17.2B Heart Attack—Injury—Question—When Carrier
Appeals

QUESTION

Did Paul Payne not sustain a compensable injury in the form of a heart
attack?

[Insert PJC 17.2A instruction on “heart attack. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 17.2 should be used if there is a dispute about whether the
claimant sustained a compensable heart attack. Only the parts of the definition raised
by the evidence should be submitted.

238

WORKERS’ COMPENSATION—COURSE & SCOPE OF EMPLOYMENT PJC 17.2

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instruction. See Tex. Lab. Code § 408.008. Note that
both the work-related event and any preexisting condition can be substantial contribut-
ing factors. Barnes v. United Parcel Service, Inc., 395 S.W.3d 165, 171 (Tex. App.—
Houston [1st Dist.] 2012, pet. denied); Transcontinental Insurance Co. v. Smith, 135
S.W.3d 831, 837 (Tex. App.— San Antonio 2004, no pet.). However, a heart attack is
compensable only when the preponderance of the medical evidence establishes that
the work was the greater factor. Transcontinental Insurance Co., 135 S.W.3d at 837.

First responder. If the worker is a first responder, see Tex. Gov't Code
§ 607.056.

239

PJC 17.3 WORKERS’ COMPENSATION—COURSE & SCOPE OF EMPLOYMENT

PJC 17.3 Not in Regular Course and Scope of Employment, or
Temporary Direction—Instruction

An employee who is temporarily directed by his employer to perform ser-
vices outside the usual course and scope of the employer's business is in the
course and scope of employment while performing services according to such
directions.

COMMENT

When to use. If temporary direction is raised by the evidence, PJC 17.3 should be
added to the question and definition in PJC 17.1.

Source of instruction. See Tex. Lab. Code § 401.012(b)(1). For a discussion of
the temporary direction doctrine, see Biggs v. United States Fire Insurance Co., 611
S.W.2d 624 (Tex. 1981) (employee injured while performing personal errands at direc-
tion of another employee was covered under temporary direction doctrine, based on
apparent authority of supervising employee).

240

WORKERS’ COMPENSATION—COURSE & SCOPE OF EMPLOYMENT PJC 17.4

PJC 17.4 Personal Comfort—Instruction

An act reasonably necessary to the health, comfort, and convenience of an
employee, occurring where his employment requires him to be, is not a depar-
ture from the course of employment.

COMMENT

When to use. Ifthere is a question whether the employee's injury occurred while
he was engaged in an act necessary to his health, comfort, or convenience, and
whether it occurred where his employment required him to be, PJC 17.4 should be
added to question and instruction in PJC 17.1. If there is a question whether the
employee was injured while engaged in recreation or travel, the additional instructions
at PJC 17.5 or 17.7 and 17.8 should be submitted.

Source of instruction. See Yeldell v. Holiday Hills Retirement & Nursing Center,
Inc., 701 S.W.2d 243 (Tex. 1985); Janak v. Texas Employers’ Insurance Assn, 381
S.W.2d 176 (Tex. 1964); see also Lujan v. Houston General Insurance Co., 756
S.W.2d 295 (Tex. 1988); Texas Mutual Insurance Co. v. Jerrols, 385 S.W.3d 619 (Tex.
App.—Houston [14th Dist.] 2012, no pet.).

241

PJC 17.5 WORKERS’ COMPENSATION—COURSE & SCOPE OF EMPLOYMENT

PJC 17.5 Employee Injured While Engaged in Recreational, Social,
or Athletic Activities—Instruction

An injury occurring while the worker is engaged in recreational, social, or
athletic activities is in the course of employment only if participation in such
activities is expressly or impliedly required by the employment or is a reason-
able expectancy of the employment.

COMMENT

When to use. If there is evidence that the worker was engaged in recreational,
social, or athletic activities at the time of the injury, PJC 17.5 should be added to the
question and definition in PJC 17.1.

Source of instruction. See Tex. Lab. Code § 406.032(1)(D).

242

WORKERS’ COMPENSATION—COURSE & SCOPE OF EMPLOYMENT PJC 17.6

PJC 17.6 Employee Injured While Traveling (Comment)

Historically, the Texas Workers’ Compensation Act has not required that an
employee be injured on the employer's premises. See Tex. Lab. Code § 401.011(12).
Cases applying the Act have concluded that work-required travel may be in the course
of employment, but not, as a general rule, travel between home and work. SeaBright
Insurance Co. v. Lopez, 465 S.W.3d 637, 642 (Tex. 2015); Leordeanu v. American
Protection Insurance Co., 330 S.W.3d 239, 241-42 (Tex. 2010).

If the employee has been injured while traveling, PJC 17.1 should be used. If the
injury occurred while the employee was traveling to and from work, see the additional
instruction at PJC 17.7. If the travel has both a personal and a business purpose, see
PJC 17.8.

243

PJC 17.7 WORKERS’ COMPENSATION—COURSE & SCOPE OF EMPLOYMENT

PJC 17.7 Employee Injured While Traveling to or from Work—
Instruction

Course and scope of employment does not include transportation to and
from the place of employment unless—

1. the transportation is furnished as a part of the contract of employ-
ment or is paid for by the employer, or

2. the means of the transportation are under the control of the
employer, or

3. the employee is directed in the employee's employment to proceed
from one place to another place.

COMMENT

When to use. If the worker was injured while traveling to or from work at a
"fixed" place of employment, PJC 17.7 should be used in addition to PJC 17.1. See
Evans v. Illinois Employers Insurance of Wausau, 790 S.W.2d 302 (Tex. 1990); Texas
Mutual Insurance Co. v. Jerrols, 385 S.W.3d 619 (Tex. App.—Houston [14th Dist.]
2012, no pet.). Any part of the above instruction not raised by the evidence should be
omitted.

When not to use—dual-purpose doctrine. The dual-purpose doctrine applies to
travel other than travel to and from work. See Leordeanu v. American Protection
Insurance Co., 330 S.W.3d 239 (Tex. 2010). If the dual-purpose doctrine applies, PJC
17.8 should be submitted.

Source of instruction. See Tex. Lab. Code § 401.011(12)(A).

Transportation furnished as part of employment contract or paid for by
employer. In SeaBright Insurance Co. v. Lopez, 465 S.W.3d 637 (Tex. 2015), the
employee was found to be within the course and scope of employment when he was
assigned to a remote work location and the employer provided the vehicle, paid him
per diem, and expected him to stay in a motel. In United States Fire Insurance Co. v.
Eberstein, 711 S.W.2d 355 (Tex. App.— Dallas 1986, writ ref'd n.r.e.), the “gratuitous
furnishing of a motor vehicle" did not bring the employee within the course and scope
of employment. For “portal to portal time," see Smith v. Dallas County Hospital Dis-
trict, 687 S.W.2d 69 (Tex. App.—Dallas 1985, writ ref'd n.re.); Texas Employers’
Insurance Ass’n v. Adams, 555 S.W.2d 525 (Tex. App.—Amarillo 1977, writ ref'd
n.r.e.); and Texas Employers’ Insurance Assn v. Byrd, 540 S.W.2d 460 (Tex. App.—El
Paso 1976, writ ref'd n.r.e.). See also Texas Property & Casualty Insurance Guaranty
Assn v. Brooks, 269 S.W.3d 645 (Tex. App.—Austin 2008, no pet.).

244

WORKERS’ COMPENSATION—COURSE & SCOPE OF EMPLOYMENT PJC 17.7

Transportation or travel directed by employer. See SeaBright, 465 S.W.3d 637
Evans, 790 S.W.2d 302; Freeman v. Texas Compensation Insurance Co., 603 S.W.2d
186 (Tex. 1980); Smith, 687 S.W.2d 69; United States Fire Insurance Co. v. Brown,
654 S.W.2d 566 (Tex. App.—Waco 1983, no writ). See also Newsom v. Ballinger
LS.D., No. 03-07-0022-CV, 2007 WL 2066185 (Tex. App.—Austin July 17, 2007)
(not designated for publication).

Fixed place of employment. An employee can have more than one fixed place of
employment, and that fixed place of employment can change according to the nature
of his work. See Evans, 790 S.W.2d 304; Bissett v. Texas Employers’ Insurance Assn,
704 S.W.2d 335, 338 (Tex. App.—Corpus Christi-Edinburg 1986, writ ref d n.r.e.).

Transportation pursuant to express or implied requirements of employment.
See the judicial construction of former Tex. Rev. Civ. Stat. art. 8309, 8 1b (now Tex.
Lab. Code § 401.011(12)), in Meyer v. Western Fire Insurance Co., 425 S.W.2d 628
(Tex. 1968), cited in Aguirre v. Vasquez, 225 S.W.3d 744, 751 (Tex. App.—Houston
[14th Dist.] 2007, no pet.); and Janak v. Texas Employers’ Insurance Ass’n, 381
S.W.2d 176 (Tex. 1964), cited in Brooks, 269 S.W.3d at 656. See also SeaBright, 465
S.W.3d at 642.

Access doctrine. An employee who is injured during the ingress to or egress from
work may be in the course of employment under the “access doctrine.” See Collins v.
Indemnity Insurance Co., No. 04-09-00671-CV, 2011 WL 1631590 (Tex. App.—San
Antonio Apr. 27, 2011) (not designated for publication). See Standard Fire Insurance
Co. v. Rodriguez, 645 S.W.2d 534, 537-38 (Tex. App.—San Antonio 1982, writ ref'd
n.r.e.), for application of the access doctrine in a multistoried building. See Turner v.
Texas Employers’ Insurance Ass’n, 715 S.W.2d 52 (Tex. App.—Dallas 1986, writ
ref'd n.r.e.), for the requirement that the injury must have been received within a rea-
sonable margin of time and space of the place where the work was required. In such
cases, the following instruction may be given:

An injury occurring while the employee is traveling to or from
work is in the course of employment only if the employee is injured
at a place where the employer has evidenced an intention that a par-
ticular route or area be used by the employee in going to or from
work and where the route or area is owned by the employer or is so
closely related to the employer’s premises as to be fairly treated as a
part of the employer’s premises.

245

PJC 17.8 WORKERS’ COMPENSATION—COURSE & SCOPE OF EMPLOYMENT

PJC 17.8 Employee Injured While Traveling with Dual Purpose—
Instruction

Travel by an employee in furtherance of the affairs or business of the
employer is in the course of employment if such travel is also in furtherance of
personal or private affairs of the employee only if—

1. the travel to the place of occurrence of the injury would have been
made even had there been no personal or private affairs of the employee to
be furthered by the trip, and

2. the travel would not have been made had there been no affairs or
business of the employer to be furthered by the travel.

COMMENT

When to use. If the worker's injury occurred while he was traveling with the dual
purpose of personal and business-related activities, PJC 17.8 should be added to the
question and definition in PJC 17.1. PJC 17.8 should be used in dual-purpose travel
cases when the employee is not traveling to and from the place of employment. See
Leordeanu v. American Protection Insurance Co., 330 S.W.3d 239, 248 (Tex. 2010). If
there is no mixture of personal and business purposes, no submission of the dual-
purpose instruction is permissible. Johnson v. Pacific Employers Indemnity Co., 439
S.W.2d 824, 827 (Tex. 1969).

Source of instruction. PJC 17.8 is based on Tex. Lab. Code 8 401.011(12)(B).
The dual-purpose rule was discussed extensively in Leordeanu, 330 S.W.3d 239.

If an employee's travel in furtherance of the employer's business is mixed with the
employee's personal reasons, the employee must meet the dual-purpose test set forth
in Tex. Lab. Code § 401.011(12)(B). For cases discussing the dual-purpose doctrine,
see St. Paul Fire & Marine Insurance Co. v. Confer, 956 S.W.2d 825 (Tex. App.—San
Antonio 1997, writ denied); Johnson, 439 S.W.2d 824; and Meyer v. Western Fire
Insurance Co., 425 S.W.2d 628 (Tex. 1968).

246

CHAPTER 18

PJC 18.1

PJC 18.1A

PJC 18.1B

PJC 18.2

PJC 18.2A

PJC 18.2B

PJC 18.3

PJC 18.3A

PJC 18.3B

PJC 18.4

PJC 18.4A

PJC 18.4B

PJC 18.5

PJC 18.5A

PJC 18.5B

PJC 18.6

PJC 18.6A

WORKERS’ COMPENSATION—DEFENSES AND EXCEPTIONS

Act of God—Question. .... onnan nnana annara 249
Act of God—Question— When Claimant Appeals ......... 249
Act of God—Question— When Carrier Appeals ........... 249

Intoxication—Question ...... 0... cece eee 252
Intoxication—Question—When Claimant Appeals......... 252
Intoxication—Question—When Carrier Appeals .......... 252

Self-Inflicted Injury—Question. ......... 00... c eee eee eee 254

Self-Inflicted Injury—Question—When Claimant Appeals . . 254
Self-Inflicted Inpjury—Question— When Carrier Appeals... . 254
Injury Followed by Self-Inflicted Death—Question .......... 255

Injury Followed by Self-Inflicted Death—Question— When
Claimant Appeals ......... 0.0 cece cece eens 255

Injury Followed by Self-Inflicted Death—Question—When
Carrier Appeals .... 20... 0... ees 255

Intentional Act of Another Person—Question ............... 257

Intentional Act of Another Person—Question—When
Claimant Appeals ........... 0. ccc cece eee ees 257

Intentional Act of Another Person—Question—When
Carrier Appeals pir i crar ccc cee ees 257

Employee's Intention to Injure Another—Question........... 259

Employee's Intention to Injure Another—Question—When
Claimant Appeals ......... 0.00. cece cece eens 259

247

PJC 18.6B Employee's Intention to Injure Another—Question— When

Carrier Appeals .......... 00.00 cece eee ee eens 259

PJC 18.7 Horseplay—Question. ......... lessen 260

PJC 18.7A Horseplay—Question— When Claimant Appeals ......... 260

PJC 18.7B Horseplay—Question— When Carrier Appeals ........... 260
PJC 18.8 Injurious Practices of Employees of Texas A&M University

System or Its Institutions, the University of Texas System or Its
Institutions, or the Texas Department of Transportation—
QUESTION. s ida c 95 SN aa Mee RA YU PE ADR E ot 262

PJC 18.8A Injurious Practices of Employees of Texas A&M University
System or Its Institutions, the University of Texas System or
Its Institutions, or the Texas Department of Transportation—
Question—When Claimant Appeals................0005 262

PJC 18.8B Injurious Practices of Employees of Texas A&M University
System or Its Institutions, the University of Texas System or
Its Institutions, or the Texas Department of Transportation—

Question—When Carrier Appeals...............00 0000. 262

PJC 18.9 Election of Remedies—Question. ............ 000000 e eee 265

PJC 18.9A Election of Remedies—Question—When Claimant
AppealS)-. isi aecsee4 deve dese See sd Pe ees 265

PJC 18.9B Election of Remedies—Question—When Carrier Appeals .. 265

248

WORKERS’ COMPENSATION—DEFENSES AND EXCEPTIONS PJC 18.1

PJC 18.1 Act of God—Question
PJC 18.1A Act of God—Question—When Claimant Appeals

QUESTION 1

Was Paul Payne's injury not caused by an “act of God”?

An injury is caused by an “act of God" if it is caused directly and exclusively
by the violence of nature, without human intervention or cause.

Answer “Yes” or “No.”

Answer:

If you answered “No” to Question 1, then answer Question 2. Otherwise, do
not answer Question 2.

QUESTION 2

Was Paul Payne injured in the course and scope of his employment?

An injury caused by an act of God is not in the course and scope of employ-
ment unless the employee is engaged at the time in the performance of duties
subjecting him to a greater hazard from the act of God than ordinarily applies
to the general public.

Answer “Yes” or “No.”

Answer:

PJC 18.1B Act of God—Question—When Carrier Appeals
QUESTION 1
Was Paul Payne’s injury caused by an “act of God"?
[Insert PJC 18.1A definition of "act of God. ”]

Answer “Yes” or “No.”

Answer:

If you answered “Yes” to Question 1, then answer Question 2. Otherwise, do
not answer Question 2.

249

PJC 18.1 WORKERS? COMPENSATION—DEFENSES AND EXCEPTIONS

QUESTION 2
Was Paul Payne not injured in the course and scope of his employment?
[Insert PJC 18.1A instruction on "greater hazard. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 18.1 should be used if the evidence raises the issue of injury
resulting from an “act of God.” See Transport Insurance Co. v. Liggins, 625 S.W.2d
780, 783 (Tex. App.—Fort Worth 1981, writ ref'd n.r.e.); Texas Workers’ Compensa-
tion Appeal Nos. 950020 (Feb. 17, 1995); 950034 (Feb. 17, 1995). For “act of God” as
an inferential rebuttal to “proximate cause” in a negligence case, see PJC 3.5.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question. Under Tex. Lab. Code § 406.032(1)(E), a carrier is not liable
for compensation if the injury arose out of an act of God unless the employment
exposes the employee to a greater risk of injury from an act of God than ordinarily
applies to the general public. The act of God exception to compensability stands on a
different footing than the inferential rebuttal instruction for act of God. Compare PJC
3.2.

Specific force or condition. Because there may be an evidentiary question
whether a particular force or condition constitutes an act of God, the Committee rec-
ommends that the specific force or condition not be specified in the jury instructions.
See Mid-Continent Casualty Co. v. Whatley, 742 S.W.2d 475, 478—79 (Tex. App.—
Dallas 1987, no writ).

Extreme weather temperature. The courts treat injuries caused by excessive
heat (e.g., heatstroke, sunstroke, heat exhaustion) as an *act of God" in that the
employee must establish that he was engaged in duties that subjected him to a greater
hazard from heat "than ordinarily applies to the general public." Tex. Lab. Code
§ 406.032(1)(E); see Weicher v. Insurance Co. of North America, 434 S.W.2d 104,
106—07 (Tex. 1968); Commercial Standard Insurance Co. v. Allred, 413 S.W.2d 910,
914 (Tex. 1967); Traders & General Insurance Co. v. Ross, 263 S.W.2d 673, 675 (Tex.
App.—Galveston 1953, writ ref'd n.re.). See also Texas Workers’ Compensation
Appeal Nos. 950020 (Feb. 17, 1995); 002641 (Dec. 22, 2000). The same reasoning
should apply to injuries caused by excessive cold (e.g., frostbite).

250

WORKERS’ COMPENSATION—DEFENSES AND EXCEPTIONS PJC 18.1

Insect sting not act of God. An insect sting is not an act of God. Standard Fire
Insurance Co. v. Cuellar, 468 S.W.2d 880, 882-83 (Tex. App.—San Antonio 1971,
writ ref'd n.r.e.); but see Texas Workers’ Compensation Fund v. Simon, 980 S.W.2d
730, 736-37 (Tex. App.—San Antonio 1998, no pet.).

251

PJC 18.2 WORKERS? COMPENSATION—DEFENSES AND EXCEPTIONS

PJC 18.2 Intoxication—Question
PJC 18.2A Intoxication—Question—When Claimant Appeals

QUESTION

Did Paul Payne's injury occur while he was not in a state of intoxication?
“Intoxication” means the state of—
1. having an alcohol concentration of .08 percent; or

2. not having the normal use of mental or physical faculties resulting
from the voluntary introduction into the body of cocaine.

Answer “Yes” or “No.”

Answer:

PJC 18.2B Intoxication—Question—When Carrier Appeals

QUESTION
Did Paul Payne’s injury occur while he was in a state of intoxication?
[Insert PJC 18.2A definition of “intoxication. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. If the evidence raises intoxication as a statutory exclusion from
coverage, PJC 18.2 should be submitted. See Sanchez v. State Office of Risk Manage-
ment, 234 S.W.3d 96, 101-02 (Tex. App.—El Paso 2007, no pet.). Only the parts of
the definition raised by the evidence should be submitted. When there is evidence that
the employee ingested a specific substance, such as cocaine, the instruction in element
2 should refer specifically to that substance.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question. PJC 18.2 is based on the “intoxication” exception of Tex.
Lab. Code § 406.032(1)(A), as defined in Tex. Lab. Code § 401.013.

252

WORKERS’ COMPENSATION—DEFENSES AND EXCEPTIONS PJC 18.2

Presumption of intoxication. Tex. Lab. Code § 401.013(c) provides that on the
voluntary introduction into the body of certain substances there is a rebuttable pre-
sumption that a person is intoxicated and does not have the normal use of mental or
physical faculties. The Committee expresses no opinion regarding the effect of this
presumption on the burden of proof in a suit for judicial review.

Intoxication is complete defense. Intoxication at the time of injury is a complete
defense, because the worker's injury is statutorily excluded from coverage. No ques-
tion should be submitted inquiring whether the intoxication contributed to the injury.
Texas Indemnity Insurance Co. v. Dill, 42 S.W.2d 1059, 1059—60 (Tex. App.—East-
land 1931), aff d, 63 S.W.2d 1016 (Tex. Comm’n App. 1933, judgm’t adopted); see
also March v. Victoria Lloyds Insurance Co., 773 S.W.2d 785, 791 (Tex. App.—Fort
Worth 1989, writ denied).

253

PJC 18.3 WORKERS? COMPENSATION—DEFENSES AND EXCEPTIONS

PJC 18.3 Self-Inflicted Injury—Question

PJC 18.3A Self-Inflicted Injury—Question—When Claimant
Appeals

QUESTION

Was Paul Payne's injury not caused by his willful attempt to injure himself?
Answer “Yes” or “No.”

Answer:

PJC 18.3B Self-Inflicted Injury—Question—When Carrier Appeals

QUESTION

Was Paul Payne’s injury caused by his willful attempt to injure himself?
Answer “Yes” or “No.”

Answer:

COMMENT

When to use. If the evidence raises self-inflicted injury, PJC 18.3 should be sub-
mitted. See Gregory v. Texas Employers’ Insurance Ass’n, 530 S.W.2d 105 (Tex.
1975); Saunders v. Texas Employers’ Insurance Ass'n, 526 S.W.2d 515, 516-17 (Tex.
1975); Texas Workers’ Compensation Appeal No. 012660 (Dec. 3, 2001).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question. PJC 18.3 is based on the “self-inflicted injury” exception of

Tex. Lab. Code § 406.032(1)(B), which provides that the carrier is not liable if the
injury “was caused by the employee’s wilful attempt to injure himself.”

254

WORKERS’ COMPENSATION—DEFENSES AND EXCEPTIONS PJC 18.4

PJC 18.4 Injury Followed by Self-Inflicted Death—Question

PJC 18.4A Injury Followed by Self-Inflicted Death—Question—
When Claimant Appeals

QUESTION

Was Paul Payne's injury on January 1, 2012, a producing cause of his
death?

The work injury is a “producing cause" of the worker's death if the effects of
his injury were a substantial factor in a mental derangement that dominates the
worker and impairs his ability to resist a suicidal impulse, and without which
the death would not have occurred. Otherwise, the injury is not a producing
cause of the worker's death.

Answer “Yes” or “No.”

Answer:

PJC 18.4B Injury Followed by Self-Inflicted Death—Question—
When Carrier Appeals

QUESTION

Was Paul Payne’s injury on January 1, 2012, not a producing cause of his
death?

[Insert PJC 18.4A instruction on “producing cause” of death.]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 18.4 should be conditioned on an affirmative finding on
"injury" or “course and scope of employment” or on “injury and course and scope of
employment” if there is a question on either or both of those issues.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

255

PJC 18.4 WORKERS? COMPENSATION—DEFENSES AND EXCEPTIONS

Source of instruction. The instruction following the question is in conformity
with Saunders v. Texas Employers' Insurance Ass'n, 526 S.W.2d 515, 517-18 (Tex.
1975). See also Commerce & Industrial Insurance Co. v. Ferguson-Stewart, No. 13-
10-00554-CV, 2012 WL 1656537 (Tex. App.—Corpus Christi-Edinburg May 10,
2012) (not designated for publication).

Date of injury. If there is a dispute about the exact date of injury, the words “or
about" should be inserted before the date of injury in the question.

256

WORKERS’ COMPENSATION—DEFENSES AND EXCEPTIONS PJC 18.5

PJC 18.5 Intentional Act of Another Person—Question

PJC 18.5A Intentional Act of Another Person—Question—When
Claimant Appeals

QUESTION

Was Paul Payne's injury not caused by the act of another person intended to
injure Paul Payne because of a personal reason but rather directed at him as an
employee or because of the employment?

Answer “Yes” or “No.”

Answer:

PJC 18.5B Intentional Act of Another Person—Question—When
Carrier Appeals

QUESTION

Was Paul Payne's injury caused by the act of another person intended to
injure Paul Payne because of a personal reason and not directed at him as an
employee or because of the employment?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. If the evidence raises this statutory exclusion from coverage, PJC
18.5 should be submitted. See Nasser v. Security Insurance Co., 724 S.W.2d 17, 17-18
(Tex. 1987); Liberty Mutual Insurance Co. v. Hopkins, 422 S.W.2d 203, 207-08 (Tex.
App.—Beaumont 1967, writ ref'd n.r.e.); see also Walls Regional Hospital v. Bomar, 9
S.W.3d 805 (Tex. 1999); Texas Workers’ Compensation Appeal Nos. 962472 (Jan. 17,
1997); 971539 (Sept. 23, 1997).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question. PJC 18.5 is based on the “third person’s intentional act
exception of Tex. Lab. Code § 406.032(1)(C), which provides that a carrier is not lia-
ble if the injury “arose out of an act of a third person intended to injure the employee

257

PJC 18.5 WORKERS? COMPENSATION—DEFENSES AND EXCEPTIONS

because of a personal reason and not directed at the employee as an employee or
because of the employment."

Reasons personal to the employee. The prior statute used the phrase “because of
reasons personal to him," which has been interpreted by the courts to mean “because
of reasons personal to the employee.” Bomar, 9 S.W.3d 805, 806-07; Vivier v. Lum-
bermen's Indemnity Exchange, 250 S.W. 417 (Tex. Comm’n App. 1923, judgm't
adopted); Southern Surety Co. v. Shook, 44 S.W.2d 425 (Tex. App.—Eastland 1931,
writ ref d); see also Nasser, 724 S.W.2d 17.

258

WORKERS’ COMPENSATION—DEFENSES AND EXCEPTIONS PJC 18.6

PJC 18.6 Employee's Intention to Injure Another—Question

PJC 18.6A Employee's Intention to Injure Another—Question—
When Claimant Appeals

QUESTION

Was Paul Payne's injury not caused by Ais willful attempt to unlawfully
injure another person?

Answer “Yes” or “No.”

Answer:

PJC 18.6B Employee’s Intention to Injure Another—Question—
When Carrier Appeals

QUESTION

Was Paul Payne’s injury caused by his willful attempt to unlawfully injure
another person?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. If the evidence raises this statutory exclusion from coverage, PJC
18.6 should be submitted. See Federal Underwriters Exchange v. Samuel, 160 S.W.2d
61, 63-64 (Tex. 1942); Liberty Mutual Insurance Co. v. Hopkins, 422 S.W.2d 203,
207—08 (Tex. App.— Beaumont 1967, writ ref'd n.r.e.); see also Walls Regional Hos-
pital v. Bomar, 9 S.W.3d 805, 807-08 (Tex. 1999); Texas Workers’ Compensation
Appeal Nos. 962472 (Jan. 17, 1997); 971539 (Sept. 23, 1997).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question. PJC 18.6 is based on the "employee's intention to injure
another" exception of Tex. Lab. Code $ 406.032(1)(B), which provides that there is no
liability if the injury “was caused by the employee's wilful attempt to... unlawfully
injure another person."

259

PJC 18.7 WORKERS? COMPENSATION—DEFENSES AND EXCEPTIONS

PJC 18.7 Horseplay—Question
PJC 18.7A Horseplay—Question—When Claimant Appeals

QUESTION

Was Paul Payne not engaged in horseplay that was a producing cause of his
injury?

If the employee voluntarily turns aside from the duties of his employment

and willingly engages or participates in an act of practical joking, or other play,
the employee is engaging in horseplay.

Answer “Yes” or “No.”

Answer:

PJC 18.7B Horseplay—Question—When Carrier Appeals

QUESTION

Was Paul Payne engaged in horseplay that was a producing cause of his
injury?

[Insert PJC 18.7A definition of "horseplay. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. If the evidence raises the “horseplay” exception to coverage, PJC
18.7 may be submitted. See Vasquez v. Six Flags Houston, Inc., 120 S.W.3d 445, 451—
52 (Tex. App.—Texarkana 2003, no pet.); Anchor Casualty Co. v. Patterson, 239
S.W.2d 904, 908 (Tex. App.—Eastland 1951, writ ref'd n.re.); cf. Liberty Mutual
Insurance Co. v. Hopkins, 422 S.W.2d 203, 207—08 (Tex. App.—Beaumont 1967, writ
ref'd n.re.) (employee injured in fight); Maryland Casualty Co. v. Smithson, 341
S.W.2d 951, 955—56 (Tex. App.— Dallas 1960, writ ref'd n.r.e.) (employee injured
while traveling).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

260

WORKERS’ COMPENSATION—DEFENSES AND EXCEPTIONS PJC 18.7

Source of question. PJC 18.7 is derived from Tex. Lab. Code § 406.032(2). If the
worker knowingly and willingly engaged in horseplay, he departed from the course of
his employment, and any injury received as a result of such activity is not compensa-
ble. Patterson, 239 S.W.2d at 906; but see Texas Employers’ Insurance Ass’n v. Brog-
don, 321 S.W.2d 323, 326 (Tex. App.—Fort Worth 1959, writ ref'd n.r.e.) (employee
injured by another's horseplay entitled to compensation); see also Mo-Vac Service Co.
v. Escobedo, No. 18-0852, 2020 WL 3126989, at *9 (Tex. June 12, 2020) (acknowl-
edging intentional injury exception to Texas Workers’ Compensation Act exclusive
remedy).

261

PJC 18.8 WORKERS? COMPENSATION—DEFENSES AND EXCEPTIONS

PJC 18.8 Injurious Practices of Employees of Texas A&M
University System or Its Institutions, the University of
Texas System or Its Institutions, or the Texas Department
of Transportation—Question

PJC 18.8A Injurious Practices of Employees of Texas A&M
University System or Its Institutions, the University of
Texas System or Its Institutions, or the Texas Department
of Transportation—Question—When Claimant Appeals

QUESTION

Did Paul Payne not persist in an injurious practice that tended to imperil or
retard his recovery and that contributed to his incapacity?

To “persist in an injurious practice,” a worker must have continued in an act
or course of action after having been advised or having knowledge that the act
or course of action should be discontinued and that persisting in such act or
course of action would imperil or retard his recovery, or a worker must have
refused to submit to medical, surgical, chiropractic, or the remedial treatment
recognized by the state as reasonably essential to promote the employee’s
recovery.

Answer “Yes” or “No.”

Answer:

PJC 18.8B Injurious Practices of Employees of Texas A&M
University System or Its Institutions, the University of
Texas System or Its Institutions, or the Texas Department
of Transportation—Question—When Carrier Appeals

QUESTION 1

Did Paul Payne persist in an injurious practice that tended to imperil or
retard his recovery and that contributed to his incapacity?

[Insert PJC 18.8A definition of “persist in injurious practice. "]

Answer “Yes” or “No.”

Answer:

262

WORKERS’ COMPENSATION—DEFENSES AND EXCEPTIONS PJC 18.8

If you answered “Yes” to Question 1, then answer Question 2. Otherwise, do
not answer Question 2.

QUESTION 2

Find the dates during which Paul Payne’s persisting in such injurious prac-
tice contributed to his incapacity.

Answer by giving the beginning and ending dates.

Beginning date:

Ending date:

If you answered “Yes” to Question 1, then answer Question 3. Otherwise, do
not answer Question 3.

QUESTION 3

Find the percentage that Paul Payne’s persisting in such injurious practice
contributed to his incapacity.

Answer: %

COMMENT

When to use. PJC 18.8 should be used if an employee of the Texas A&M Univer-
sity System or its Institutions, the University of Texas System or its Institutions, or the
Texas Department of Transportation persisted in, after being advised to desist from,
any injurious practice that imperiled or retarded the employee's recovery and contrib-
uted to the employee’s incapacity. A finding that the employee did persist in engaging
in injurious practices should be followed by a question inquiring about the dates
during which such persistence contributed to the employee’s incapacity as well as a
question asking the jury to find the percentage that such persistence in injurious prac-
tices contributed to the incapacity.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of questions. PJC 18.8 is derived from the Tex. Lab. Code § 502.067,
which provides—

(a) The commissioner of workers’ compensation may order or direct the
system or the institution to reduce or suspend the compensation of an
injured employee who:

263

PJC 18.8 WORKERS? COMPENSATION—DEFENSES AND EXCEPTIONS

(1) persists in insanitary or injurious practices that tend to imperil
or retard the employee's recovery; or

(2) refuses to submit to medical, surgical, chiropractic, or other
remedial treatment recognized by the state that 1s reasonably
essential to promote the employee's recovery.

(b) Compensation may not be reduced or suspended under this section
without reasonable notice to the employee and an opportunity to be heard.

See also Tex. Labor Code §§ 503.067, 505.057. A request and refusal to desist from
the injurious practice must be pleaded and proved before the defense is available, and
the burden of proof on these issues 1s on the appealing party. Fidelity & Casualty Co.
of New York v. Shubert, 646 S.W.2d 270, 275 (Tex. App.—Tyler 1983, writ ref'd
n.r.e.); Argonaut Underwriters Insurance Co. v. Byerly, 329 S.W.2d 937, 943 (Tex.
App.— Beaumont 1959, writ ref'd n.r.e.); Texas Employers’ Insurance Assn v. Rob-
erts, 281 S.W.2d 104, 108 (Tex. App.—Fort Worth 1955, no writ).

For the injurious-practice defense to prevail, the employee must have been advised
that persistence in the injurious practice would retard or imperil his recovery. Com-
mercial Insurance Co. of Newark, New Jersey v. Smith, 596 S.W.2d 661, 666 (Tex.
App.—Fort Worth 1980, writ ref'd n.r.e.); Aetna Casualty & Surety Co. v. Shreve, 551
S.W.2d 79, 84 (Tex. App.—Houston [1st Dist.] 1977, no writ); Utica Mutual Insur-
ance Co. v. Ritchie, 500 S.W.2d 879, 884 (Tex. App.—Houston [1st Dist.] 1973, no
writ); Millers Mutual Fire Insurance Co. v. Gilbert, 462 S.W.2d 112, 118 (Tex. App.—
Beaumont 1970, writ ref'd n.r.e.).

The Committee has no opinion on whether this defense is available to carriers and
employers other than those listed in the paragraph above entitled “When to use."

264

WORKERS’ COMPENSATION—DEFENSES AND EXCEPTIONS PJC 18.9

PJC 18.9 Election of Remedies—Question

PJC 18.9A Election of Remedies—Question—When Claimant
Appeals

QUESTION

Did Paul Payne establish that his acceptance of group health insurance ben-
efits was not an election?

An "election" occurs when one successfully exercises an informed choice
between two or more remedies, rights, or states of facts that are so inconsistent
as to constitute manifest injustice. An “informed choice" means a choice made
with a full and clear understanding of the problems, facts, and remedies essen-
tial to the exercise of any knowledgeable and intelligent choice.

Answer “Yes” or “No.”

Answer:

PJC 18.9B Election of Remedies—Question—When Carrier Appeals

QUESTION

Did the insurance carrier establish that Paul Payne's acceptance of group
health insurance benefits was an election?

[Insert PJC 18.94 instruction on "election. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 18.9 should be used if there is evidence that the worker previ-
ously chose to receive compensation from a source other than the insurance carrier and
now seeks to recover for the same loss from the insurance carrier.

Caveat. The supreme court has specifically left open the issue of whether Tex.
Lab. Code § 409.009 abrogates the election-of-remedies doctrine. Valley Forge Insur-
ance Co. v. Austin, 105 S.W.3d 609 (Tex. 2003).

265

PJC 18.9 WORKERS? COMPENSATION—DEFENSES AND EXCEPTIONS

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and definitions. PJC 18.9 is based on Medina v. Herrera, 927
S.W.2d 597, 600 (Tex. 1996), and Bocanegra v. Aetna Life Insurance Co., 605 S.W.2d
848, 851—52 (Tex. 1980); see also United States Fire Insurance Co. v. Pettyjohn, 816
S.W.2d 839, 841 (Tex. App.—Fort Worth 1991, no writ); Smith v. Home Indemnity
Co., 683 S.W.2d 559, 563 (Tex. App.—Fort Worth 1985, no writ).

266

CHAPTER 19

PJC 19.1

PIC 19.1A

PJC 19.1B

PIC 192

PIC 19.3

PIC 19,3A

PJC 19.3B

WORKERS’ COMPENSATION—OCCUPATIONAL DISEASE
Occupational Disease—Question ........... 000. c eee eee

Occupational Disease—Question—When Claimant
Appeals. o bI EUR exw ina Pose i a alg NER Ps

Occupational Disease—Question—When Carrier Appeals. . .
Date of Injury for Occupational Disease—Question ..........
Last Injurious Exposure—Question ..............000e eee ee

Last Injurious Exposure—Question— When Claimant
Appeals: «de prsdacext e WAR ERR E ERES

Last Injurious Exposure—Question—When Carrier
Appeals: -LeneeEPRA 4 RERO RE t etare n ARABES Ree

269

267

WORKERS’ COMPENSATION—OCCUPATIONAL DISEASE PJC 19.1

PJC 19.1 Occupational Disease—Question

PJC 19.1A Occupational Disease—Question—When Claimant
Appeals

QUESTION

Did Paul Payne sustain an occupational disease arising out of and in the
course of his employment with ABC Company?

An “occupational disease” is a disease arising out of and in the course of
employment that causes damage or harm to the physical structure of the body.

An “occupational disease” includes damage or harm to the physical structure
of the body occurring as the result of repetitious, physically traumatic activities
that occur over time and arise out of and in the course and scope of employ-
ment.

An “occupational disease” includes a disease or infection that naturally
results from the work-related disease.

An “occupational disease” does not include an ordinary disease of life to
which the general public is exposed outside of employment, unless that disease
is an incident to a compensable injury or occupational disease.

Answer “Yes” or “No.”

Answer:

PJC 19.1B Occupational Disease—Question—When Carrier
Appeals

QUESTION

Did Paul Payne not sustain an occupational disease arising out of and in the
course of his employment with ABC Company?

[Insert PJC 19.1A instructions on "occupational disease. "]

Answer “Yes” or “No.”

Answer:

269

PJC 19.1 WORKERS’ COMPENSATION—OCCUPATIONAL DISEASE

COMMENT

When to use. PJC 19.1 submits the “occupational disease" theory of recovery in
combination with the course-of-employment question. For submission of the acciden-
tal injury theory of recovery, see PJC 17.1.

PJC 19.1 should be used if the evidence disputes the existence of an occupational
disease occurring in the course of employment. Note, however, that the second para-
graph of the definition, dealing with repetitious, physically traumatic activities, should
be submitted only if the evidence shows the worker's occupational disease resulted
from such activities. Otherwise, the second paragraph of the definition should be omit-
ted.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instruction. PJC 19.1 is based on Tex. Lab. Code
§ 401.011(12), (26), (34), (36).

Injury theory vs. occupational disease theory. Despite the inclusion of occupa-
tional disease in the statutory definition of injury (Tex. Lab. Code § 401.011(26)), the
traditional distinction between the accidental injury theory of recovery and the occu-
pational disease theory of recovery continues. The term “injury” is “an undesigned,
untoward event that is traceable to a definite time, place, and cause. In other words, it
is a result of an accident." Transportation Insurance Co. v. Maksyn, 580 S.W.2d 334,
336 (Tex. 1979); accord Brown v. Texas Employers’ Insurance Assn, 635 S.W.2d 415,
416 (Tex. 1982). An occupational disease, however, is gradual in development, and the
time, place, and cause of the disease cannot necessarily be definitely ascertained.
Texas Employers’ Insurance Ass’n v. Etheredge, 272 S. W.2d 869 (Tex. 1954); Aetna
Casualty & Surety Co. v. Shreve, 551 S.W.2d 79, 81 (Tex. App.—Houston [1st Dist.]
1977, no writ); see also Fire & Casualty Insurance Co. v. Miranda, 293 S.W.3d 620
(Tex. App.—San Antonio 2009, no pet.), overruled on other grounds by Texas Mutual
Insurance v. Chicas, 593 S.W.3d 284 (Tex. 2019).

Types of occupational disease. The Labor Code identifies two types of occupa-
tional disease: classic occupational disease and damage or harm to the physical struc-
ture of the body as a result of "repetitive trauma injury" Tex. Lab. Code
§ 401.011(34). A classic occupational disease is described in the first paragraph of the
definition in PJC 19.1 and includes such diseases as anthrax, asbestosis, silicosis, and
psittacosis, all of which are gradual in developing, so that the time, place, and cause
cannot necessarily be ascertained. Etheredge, 272 S.W.2d 869; Shreve, 551 S.W.2d at
81. Repetitive trauma injury is covered in the second paragraph of the definition in
PJC 19.1, but if there is no evidence of repetitious, physically traumatic activities, this
part of the definition should be omitted. The legislative history of the word “physical”
in the phrase “repetitious, physically traumatic activities” has been judicially deter-
mined to indicate an intent to exclude repetitious mental traumatic activities from

270

WORKERS’ COMPENSATION—OCCUPATIONAL DISEASE PJC 19.1

compensability as an occupational disease. Maksyn, 580 S.W.2d at 337-38 (discussing
former Tex. Rev. Civ. Stat. art. 8306, § 20); see also Brown, 635 S.W.2d 415 (plaintiff
could not recover for heart attack due to mental stress, because such stress was not
traceable to a definite time, place, and cause). The rule in both cases now appears to
have been expressly adopted or approved by the legislature. See Tex. Lab. Code
$8 408.006, 408.008(1). Note that mental stimuli may result in a compensable injury
under the accidental injury theory of recovery. Brown, 635 S.W.2d at 415; Bailey v.
American General Insurance Co., 279 S.W.2d 315 (Tex. 1955); Aetna Insurance Co. v.
Hart, 315 S.W.2d 169 (Tex. App.—Houston 1958, writ ref'd n.re.). See PJC 19.1
Comment.

For examples of claims for classic occupational disease, see Marts v. Transporta-
tion Insurance Co., 111 S.W.3d 699 (Tex. App.—Fort Worth 2003, pet. denied), and
Texas Workers' Compensation Insurance Fund v. Lopez, 21 S.W.3d 358 (Tex. App.—
San Antonio 2000, pet. denied.). For claims for repetitive trauma injury, see Saenz v.
Insurance Co. of State of Pennsylvania, 66 S.W.3d 444 (Tex. App.—Waco 2001, no
pet.), and Texas Workers’ Compensation Appeal Nos. 960929 (June 28, 1996), 972321
(Dec. 29, 1997).

Ordinary diseases of life. Ordinary diseases of life, covered in the fourth para-
graph of the definition in PJC 19.1, are excluded from compensable occupational dis-
eases because an ordinary disease of life, or the hazards thereof, is not indigenous to
an employee's work or is not present in an increased degree in the employee's work.
Schaefer v. Texas Employers' Insurance Ass'n, 612 S.W.2d 199, 205 (Tex. 1980);
Home Insurance Co. v. Davis, 642 S.W.2d 268, 269 (Tex. App.— Texarkana 1982, no
writ); Aetna Casualty & Surety Co. v. Burris, 600 S.W.2d 402, 406-07 (Tex. App.—
Tyler 1980, writ ref'd n.r.e.). See also Zurich American Insurance Co. v. Gill, 173
S.W.3d 878 (Tex. App.—Fort Worth 2005, pet. denied); Texas Workers’ Compensa-
tion Appeal No. 93885 (Nov. 15, 1993).

Caveat: aggravation, acceleration, or incitement. Submission of aggravation,
acceleration, or incitement of an occupational disease, in the Committee’s opinion, is
troublesome. Cases supporting the inclusion of the aggravation feature include United
States Fidelity & Guaranty Co. v. Bearden, 700 S.W.2d 247 (Tex. App.—Tyler 1985,
no writ); Leal v. Employers Mutual Liability Insurance Co., 605 S.W.2d 328 (Tex.
App.—Houston [14th Dist.] 1980, no writ); City of Bridgeport v. Barnes, 591 S.W.2d
939, 940-41 (Tex. App.—Fort Worth 1979, writ ref'd n.r.e.); Lubbock Independent
School District v. Bradley, 579 S.W.2d 78, 81—82 (Tex. App.—Amarillo 1979, writ
ref'd n.r.e.); Teague v. Charter Oak Fire Insurance Co., 548 S.W.2d 957 (Tex. App.—
Austin 1977, writ ref'd n.r.e.); and Standard Fire Insurance Co. v. Ratcliff, 537 S.W.2d
355, 359-60 (Tex. App.— Waco 1976, no writ). Cases rejecting the aggravation sub-
mission include Texas Employers’ Insurance Assn v. Schaefer, 598 S.W.2d 924, 928
(Tex. App.—Eastland), aff'd on other grounds, 612 S.W.2d 199 (Tex. 1980); and
Davis, 642 S.W.2d at 269.

271

PJC 19.1 WORKERS’ COMPENSATION—OCCUPATIONAL DISEASE

A possible submission of the aggravation, acceleration, or incitement feature would
be to add to the first paragraph of the definition in PJC 19.1 (or in the case of repeti-
tious, physically traumatic activities, to the second paragraph) the following:

An "occupational disease" includes the aggravation, acceleration,
or incitement of any disease, infirmity, or condition previously or
subsequently existing by reason of any such damage or harm.

See Bearden, 700 S.W.2d at 249; Leal, 605 S.W.2d at 328-29; Ratcliff, 537 S.W.2d at
359.

Mental trauma. The legislative intent of Tex. Lab. Code § 408.006 has been
judicially interpreted to exclude mental trauma or mental stimuli occurring gradually
over an extended period as a compensable occupational disease. GTE Southwest v.
Bruce, 998 S.W.2d 605, 611 (Tex. 1999); see also Maksyn, 580 S. W.2d at 337-38.
Under the “accidental injury" theory of recovery, however, mental trauma or mental
stimuli traceable to a definite time, place, and cause can result in a compensable injury.
State Office of Risk Management v. Foutz, 279 S.W.3d 826, 832 (Tex. App.—Eastland
2009, no pet.); Travelers Insurance Co. v. Garcia, 417 S.W.2d 630, 632 (Tex. App.—
El Paso 1967, writ ref'd n.r.e.). See PJC 17.1.

272

WORKERS’ COMPENSATION—OCCUPATIONAL DISEASE PJC 19.2

PJC 19.2 Date of Injury for Occupational Disease—Question

QUESTION

Is the date of injury for Paul Payne's occupational disease with ABC Com-
pany not January 1, 2012?

The date of injury is the date that Paul Payne knew or should have known
that the occupational disease may be related to his employment.

Answer “Yes” or “No.”

Answer:

If you answered the above question “Yes,” then answer the following ques-
tion. Otherwise, do not answer the following question.

QUESTION

What is the date of injury for Paul Payne's occupational disease with ABC
Company?

Answer by including month, day, and year.

Answer:

COMMENT

When to use. PJC 19.2 should be used if there is a dispute about the date of injury
in an occupational disease case. In most cases, the date of injury question will follow
the question on occupational disease in PJC 19.1.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1. Thus, the appealing party
(whether claimant or carrier) bears the burden to disprove the decision of the Division
of Workers’ Compensation of the Texas Department of Insurance (DWC) on a date of
injury dispute. See Tex. Lab. Code § 410.303. Accordingly, the second question in PJC
19.2 should be conditioned on a determination that the date selected by the DWC is
incorrect. The first question in PJC 19.2 should, therefore, include the date of injury
found by the DWC.

Source of question and instructions. PJC 19.2 is derived from Tex. Lab. Code
§ 408.007. See also Tex. Lab. Code § 401.011(12) regarding course of employment.

273

PJC 19.2 WORKERS’ COMPENSATION—OCCUPATIONAL DISEASE

Name of occupational disease. In an occupational disease case, the name of the
disease inquired about (e.g., carpal tunnel syndrome) should replace the words occu-
pational disease.

274

WORKERS’ COMPENSATION—OCCUPATIONAL DISEASE PJC 19.3

PJC 19.3 Last Injurious Exposure—Question

PJC 19.3A Last Injurious Exposure—Question—When Claimant
Appeals

QUESTION
Was Paul Payne last injuriously exposed to the hazards of the occupational
disease while he was in the employment of ABC Company?

"Injuriously exposed” means that the worker suffered damage or harm to the
physical structure of the body.

Answer “Yes” or “No.”

Answer:
PJC 19.3B Last Injurious Exposure—Question—When Carrier
Appeals
QUESTION

Was Paul Payne not last injuriously exposed to the hazards of the occupa-
tional disease while he was in the employment of ABC Company?

[Insert PJC 19.3A definition of “injuriously exposed. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 19.3 should be used if there is evidence that the claimant may
have been exposed to the hazards of an occupational disease while employed by more
than one employer. See Texas Employers’ Insurance Ass’n v. Etheredge, 272 S.W.2d
869 (Tex. 1954); U.S. Fire Insurance Co. v. Ramos, 863 S.W.2d 534 (Tex. App.—El
Paso, 1993, writ denied).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instruction. PJC 19.3 is based on Tex. Lab. Code
$8 406.031(b), 409.001 (c).

275

CHAPTER 20

PJC 20.1

PJC 20.1A

PJC 20.1B

PJC 20.2

PIC 20.2A

PJC 20.2B

FJC 20.3

PJC 20.3A

PJC 20.3B

PJC 20.4

PJC 20.4A

PJC 20.4B

PJC 20.5

PJC 20.5A

PJC 20.5B

WORKERS’ COMPENSATION— TIMELINESS OF
RESPONDING, FILING, AND DISPUTING

Waiver—Question ...... llle 279
Waiver—Question—When Claimant Appeals. ............ 279
Waiver—Question—When Carrier Appeals .............. 279

Notice to Employer of Injury—Question ................004. 281
Notice to Employer of Injury—Question—When Claimant
PLI SM T "P" a aie a weaves darren anne ae 281
Notice to Employer of Injury—Question—When Carrier
Appeals Cees netto vo P oe E ea rS d peas 281

Good Cause for Delay in Notifying Employer—Question ..... 283
Good Cause for Delay in Notifying Employer—Question—
When Claimant Appeals ..........lllssleeseeseeeeee 283
Good Cause for Delay in Notifying Employer—Question—
When Carrier Appeals... 0... 0... ccc eee es 283

Claim for Compensation to the Division—Question .......... 286

Claim for Compensation to the Division—Question—When
Claimant Appeals

Claim for Compensation to the Division—Question— When
Carrier Appeals... esee ee e be Cad oe ee pe s 286

Good Cause for Delay in Filing Clatm—Question............ 288

Good Cause for Delay in Filing Claim—Question— When

Claimant Appeals ...........ssssssseeeesee esee 288
Good Cause for Delay in Filing Claim—Question— When
Carrier Appeals ....... 0... ccc ees 288

277

WORKERS’ COMPENSATION—TIMELINESS OF RESPONDING PJC 20.1

PJC 20.1 Waiver—Question
PJC 20.1A Waiver—Question—When Claimant Appeals

QUESTION

Did ABC Insurance Carrier fail to contest the compensability of Paul
Payne’s injury on or before the sixtieth day after the date on which ABC Insur-
ance Carrier received first written notice of the injury?

Under Texas Administrative Code section 124.2, an insurance carrier con-
tests the compensability of an injury by filing a Plain Language Notice 1
(PLNO1) with the Texas Department of Insurance, Division of Workers’ Com-
pensation.

Written notice of injury means the insurance carrier’s earliest receipt of the
Employer’s First Report of Injury (Form DWC-001), written notification pro-
vided by the Division of Workers’ Compensation, or any other written commu-
nication regardless of source that fairly informs the carrier of the name of the
injured employee, the identity of the employer, the approximate date of the
injury, and information that claims the injury is work related.

Answer “Yes” or “No.”

Answer:

PJC 20.1B Waiver—Question—When Carrier Appeals

QUESTION

Did ABC Insurance Carrier contest the compensability of Paul Payne’s
injury on or before the sixtieth day after the date on which ABC Insurance Car-
rier received first written notice of the injury?

[Insert PJC 20.1A instructions on contesting compensability
and written notice of injury.]

Answer “Yes” or “No.”

Answer:

279

PJC 20.1 WORKERS’ COMPENSATION— TIMELINESS OF RESPONDING

COMMENT

When to use. PJC 20.1 should be used when the pleadings and evidence present a
question whether the insurance carrier waived its right to contest the compensability of
the claim.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and definitions. PJC 20.1 is based on Tex. Lab. Code
§ 409.021(c), which provides:

If an insurance carrier does not contest the compensability of an injury on
or before the 60th day after the date on which the insurance carrier is noti-
fied of the injury, the insurance carrier waives its right to contest compensa-
bility. The initiation of payments by an insurance carrier does not affect the
right of the insurance carrier to continue to investigate or deny the compen-
sability of an injury during the 60-day period.

The insurance carrier's notice must be in writing. Tex. Lab. Code § 409.021(a). The
Division of Workers' Compensation of the Texas Department of Insurance (DWC) has
defined written notice of injury by rule. 28 Tex. Admin. Code § 124.1(a). The carrier's
refusal to pay benefits is conveyed on a plain-language notice. See Tex. Lab. Code
§ 409.013; 28 Tex. Admin. Code 88 124.2, 124.3. The forms referred to, PLNO1 and
DWC-001, may be located by a search of the DWC's website at www.tdi.texas.gov/
forms/form20.html.

Extent-of-injury disputes. The sixty-day deadline contained in Tex. Lab. Code
§ 409.021(c) applies only to compensability; it does not apply to disputes of extent of
injury. State Office of Risk Management v. Lawton, 295 S.W.3d 646 (Tex. 2009).

280

WORKERS’ COMPENSATION—TIMELINESS OF RESPONDING PJC 20.2

PJC 20.2 Notice to Employer of Injury—Question

PJC 20.2A Notice to Employer of Injury—Question—When
Claimant Appeals

QUESTION
Did ABC Company have notice of the injury within thirty days after its
occurrence?

Notice to or actual knowledge on the part of the employer or of any supervi-
sor or manager for the employer is "notice" to the employer.

Answer “Yes” or “No.”

Answer:

PJC 20.2B Notice to Employer of Injury—Question—When Carrier
Appeals

QUESTION

Did ABC Company lack notice of the injury within thirty days after its
occurrence?

[Insert PJC 20.2A instruction on "notice. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 20.2 should be used if there is a dispute about whether the
worker gave timely notice of his injury to either his employer or the carrier.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instruction. PJC 20.2 is based on Tex. Lab. Code
$8 409.001, 409.002.

Evidence of more than one injury. If there is evidence of more than one injury,
the date of the injury inquired about should be included in the question.

281

PJC 20.2 WORKERS’ COMPENSATION— TIMELINESS OF RESPONDING

Employer’s actual knowledge of injury. Failure to notify an employer relieves
the employer and the employer’s insurance carrier of liability unless the employer, a
person eligible to receive notice, or the employer's insurance carrier has actual knowl-
edge of the employee's injury. Tex. Lab. Code § 409.002. Therefore, when the
employer has actual knowledge of the injury within thirty days, no further notice is
required. Casualty Reciprocal Exchange v. Berry, 90 S.W.2d 595, 597 (Tex. App.—
Texarkana 1935, writ ref'd); Ocean Accident & Guarantee Corp. v. Nance, 25 S.W.2d
665 (Tex. App.—San Antonio 1930, no writ). See also American Casualty Co. of
Reading, Pennsylvania v. Martin, 97 S.W.3d 679 (Tex. App.—Dallas 2003, no pet.);
Texas Workers' Compensation Appeal No. 92038 (Mar. 20, 1992) (actual knowledge
found); Texas Workers' Compensation Appeal Nos. 971072 (July 24, 1997); 040802
(June 4, 2002) (actual knowledge not found).

Notice to carrier. Failure to notify an employer relieves the employer and the
employer's insurance carrier of liability unless the employer, a person eligible to
receive notice, or the employer's insurance carrier has actual knowledge of the
employee's injury. Tex. Lab. Code § 409.002. Therefore, notice to the insurance car-
rier meets the statutory requirement. If timely notice to the carrier is disputed, the
name of the carrier should replace ABC Company in the question and the words “or
insurance carrier" should be inserted after "the employer" at the end of the instruction.
See DeAnda v. Home Insurance Co., 618 S.W.2d 529, 532 (Tex. 1980).

Notice to particular individual. If there is evidence of notice to a particular
agent of the employer, that individual's name should replace ABC Company in the
question and the instruction may be omitted.

Occupational disease. If the injury is an occupational disease, for purposes of
notice to the employer the name of the employer should be that of the person who
employed the employee on the date of the last injurious exposure. See PJC 19.3. Also,
the name of the disease inquired about (e.g., carpal tunnel syndrome) should replace
the words the injury, and the phrase after the date that Paul Payne knew or should
have known that the injury may be related to the employment must replace the phrase
after its occurrence in the question. If there is a dispute about the date of injury in an
occupational disease case, the question should be preceded by the following question
and an answer blank:

What is the date that Paul Payne knew or should have known that
the injury may be related to his employment?

See Tex. Lab. Code § 409.001(a)(2).

282

WORKERS’ COMPENSATION—TIMELINESS OF RESPONDING PJC 20.3

PJC 20.3 Good Cause for Delay in Notifying Employer—Question

PJC 20.3A Good Cause for Delay in Notifying Employer—
Question—When Claimant Appeals

If you answered “No” to Question [20.2A], then answer Question
[20.3A]. Otherwise, do not answer Question [20.34].
QUESTION

Did Paul Payne have good cause for delay in reporting his injury to ABC
Company"?

A person has “good cause” for delay in notifying the employer when he has
prosecuted his claim with the diligence an ordinarily prudent person would
have used under the same or similar circumstances.

The good cause must have arisen within thirty days of the date of the injury
and continued until the injury was reported, must have been believed and relied
on by the claimant, and must have caused the delayed reporting.

Answer “Yes” or “No.”

Answer:

PJC 20.3B Good Cause for Delay in Notifying Employer—
Question—When Carrier Appeals

If you answered “Yes” to Question [20.2B], then answer Question
[20.3B]. Otherwise, do not answer Question [20.3B].
QUESTION

Did Paul Payne lack good cause for delay in reporting Ais injury to ABC
Company"?

[Insert PJC 20.34 instruction on "good cause. "]

Answer “Yes” or “No.”

Answer:

283

PJC 20.3 WORKERS’ COMPENSATION— TIMELINESS OF RESPONDING

COMMENT

When to use. PJC 20.3 should be used if neither the employer nor the carrier was
notified of the claimant’s injury within thirty days from the date of injury and the
plaintiff has pleaded and offered evidence on the issue of “good cause” for failing to
report the injury within thirty days. PJC 20.3A should be used when the claimant is
attempting to overcome a Division finding that the employee did not have good cause
for failing to provide notice. PJC 20.3B should be used when the carrier is attempting
to overcome a Division finding that the employee did have good cause for failing to
provide notice.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instructions. Failure to notify an employer relieves the
employer and the employer's insurance carrier of liability unless good cause exists for
failure to provide notice in a timely manner or the employer or the carrier does not
contest the claim. Tex. Lab. Code 8 409.002(2).

Ultimate question is worker's belief. The ultimate question in a good-cause
issue is the worker's belief. The worker may have believed that his injury was trivial
(see Liberty Mutual Insurance Co. v. Stanley, 534 S.W.2d 191, 192 (Tex. App.—Tex-
arkana 1976, writ ref'd n.r.e.)), that his claim had been filed by his employer (see
Texas Employers’ Insurance Assn v. Thomas, 517 S.W.2d 832, 837 (Tex. App.—San
Antonio 1974, writ ref'd n.r.e.)), or that his disability was due to other causes (see
Davis v. Texas Employers’ Insurance Assn, 516 S.W.2d 452, 453—54 (Tex. App.—El
Paso 1974, no writ)). See also Safford v. Cigna Insurance Co., 983 S.W.2d 317 (Tex.
App.—Fort Worth 1998, pet. denied); Butler v. Federated Mutual Insurance Co., 871
S.W.2d 950 (Tex. App.—Fort Worth 1994, writ denied).

Evidence of more than one injury. If there is evidence of more than one injury,
the date of the injury inquired about should be included in the question.

Occupational disease. In an occupational disease case, the name of the disease
inquired about (e.g., carpal tunnel syndrome) may replace the words the injury. In
such cases, the phrase after the date that Paul Payne knew or should have known that
the injury may be related to the employment must replace the phrase of the date of the
injury in the second instruction following the question.

Good cause must extend to time of reporting. Good cause must arise within
thirty days of the date of injury and must continue until the time of reporting. See Con-
tinental Casualty Co. v. Cook, 515 S.W.2d 261 (Tex. 1974); Texas Casualty Insurance
Co. v. Beaseley, 391 S.W.2d 33 (Tex. 1965). The thirty-day time period for reporting
the injury does not “restart” on the date good cause ends. Texas Workers’ Compensa-
tion Appeal No. 93711 (Sept. 10, 1993).

284

WORKERS’ COMPENSATION—TIMELINESS OF RESPONDING PJC 20.3

Minority or incompetent. Tex. Lab. Code § 409.007 provides that a failure to
file a claim for death benefits is excused by a claimant’s minority and incompetence.
There is no similar statutory provision to excuse the failure to report an injury in a
timely fashion. But see Petroleum Casualty Co. v. Canales, 499 S.W.2d 734 (Tex.
App.—Houston [1st Dist.] 1973, writ ref'd n.r.e.) (disqualification of minority consti-
tutes good cause for failure to report claim within time provided for in statute).

285

PJC 20.4 WORKERS’ COMPENSATION— TIMELINESS OF RESPONDING

PJC 20.4 Claim for Compensation to the Division—Question

PJC 20.4A Claim for Compensation to the Division—Question—
When Claimant Appeals

QUESTION

Did Paul Payne file a claim with the Texas Department of Insurance, Divi-
sion of Workers’ Compensation, within one year of the date of his injury?

Answer “Yes” or “No.”

Answer:
PJC 20.4B Claim for Compensation to the Division—Question—
When Carrier Appeals
QUESTION

Did Paul Payne fail to file a claim with the Texas Department of Insurance,
Division of Workers’ Compensation, within one year of the date of his injury?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 20.4 should be used if there is a dispute about whether the
worker filed a claim with the Division of Workers’ Compensation of the Texas Depart-
ment of Insurance (DWC) and the carrier has disputed the claim.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instruction. PJC 20.4 is based on Tex. Lab. Code
$8 409.003, 409.004.

Evidence of more than one injury. If there is evidence of more than one injury,
the date of the injury inquired about should be included in the question.

Failure to file employer's first report of injury. If an employer or the
employer's insurance carrier has been given notice or has knowledge of an injury to or
the death of an employee and the employer or insurance carrier fails, neglects, or
refuses to file the report required under Tex. Lab. Code § 409.005, the period for filing
a claim for compensation under sections 409.003 and 409.007 does not begin to run

286

WORKERS’ COMPENSATION—TIMELINESS OF RESPONDING PJC 20.4

against the claim of an injured employee or a legal beneficiary until the day on which
the report required under section 409.005 has been furnished. Tex. Lab. Code
§ 409.008.

Death benefit claims. A person must file a claim for death benefits with the divi-
sion not later than the first anniversary of the date of the employee’s death. A separate
claim must be filed for each legal beneficiary unless the claim expressly includes or is
made on behalf of another person. See Tex. Lab. Code § 409.007.

Notice to DWC. A claim for compensation must be filed within one year except
for good cause shown. Normally this claim is filed on DWC forms. Note, however,
that there is no formality required in making claims for compensation to the DWC. See
Johnson v. American General Insurance Co., 464 S.W.2d 83, 84 (Tex. 1971). A treat-
ing doctor's medical report to the Industrial Accident Board was held to constitute suf-
ficient notice to the board to satisfy the claimant’s obligation to file a claim under the
former law. See Cadengo v. Compass Insurance Co., 721 S.W.2d 415 (Tex. App.—
Corpus Christi-Edinburg 1986, no writ).

287

PJC 20.5 WORKERS’ COMPENSATION—TIMELINESS OF RESPONDING

PJC 20.5 Good Cause for Delay in Filing Claim—Question

PJC 20.5A Good Cause for Delay in Filing Claim—Question—When

Claimant Appeals
If you answered “No” to Question [20.4A], then answer Question
[20.5A]. Otherwise, do not answer Question [20.54].

QUESTION

Did Paul Payne have good cause for delay in filing a claim with the Texas
Department of Insurance, Division of Workers' Compensation?

A person has “good cause" for delay in filing a claim with the Texas Depart-
ment of Insurance, Division of Workers' Compensation, when he has prose-
cuted his claim with the diligence an ordinarily prudent person would have
used under the same or similar circumstances.

The good cause must have arisen within one year of the date of the injury
and continued until the claim was filed, must have been believed and relied on
by the claimant, and must have caused the delayed filing.

Answer “Yes” or “No.”

Answer:

PJC 20.5B Good Cause for Delay in Filing Claim—Question—When

Carrier Appeals
If you answered “Yes” to Question [20.4B], then answer Question
[20.5B]. Otherwise, do not answer Question [20.5B].

QUESTION

Did Paul Payne not have good cause for delay in filing a claim with the
Texas Department of Insurance, Division of Workers’ Compensation?

[Insert PJC 20.5A instructions on "good cause. ”]

Answer “Yes” or “No.”

Answer:

288

WORKERS’ COMPENSATION— TIMELINESS OF RESPONDING PJC 20.5

COMMENT

When to use. PJC 20.5 should be used if no claim was filed with the Division of
Workers’ Compensation of the Texas Department of Insurance (DWC) within one year
of the date of injury, the pleadings and evidence raise a dispute about whether the
worker had good cause for failing to file the claim with the DWC, and the carrier has
contested the claim. PJC 20.5A should be used when the claimant is attempting to
overcome a Division finding that the employee did not have good cause for failing to
timely file a claim for compensation. PJC 20.5B should be used when the carrier is
attempting to overcome a Division finding that the employee did have good cause for
failing to timely file a claim for compensation.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instructions. Failure to file a claim for compensation
with the DWC relieves the employer and the employer's insurance carrier of liability
unless good cause exists for the failure to file a claim in a timely manner or the
employer or the employer's insurance carrier does not contest the claim. Tex. Lab.
Code § 409.004.

Ultimate question is worker’s belief. The ultimate question in a good-cause
issue is the worker's belief. The worker may have believed that his injury was trivial
(see Liberty Mutual Insurance Co. v. Stanley, 534 S.W.2d 191, 192 (Tex. App.—Tex-
arkana 1976, writ ref'd n.r.e.)), that his claim had been filed by his employer (see
Texas Employers’ Insurance Ass’n v. Thomas, 517 S.W.2d 832, 837 (Tex. App.—San
Antonio 1974, writ ref'd n.r.e.)), or that his disability was due to other causes (see
Davis v. Texas Employers’ Insurance Assn, 516 S.W.2d 452, 453—54 (Tex. App.—El
Paso 1974, no writ).

Evidence of more than one injury. If there is evidence of more than one injury,
the date of the injury inquired about should be included in the question.

Good cause must extend to time of filing. In Travelers Insurance Co. v. Echols,
508 S.W.2d 422, 425 (Tex. App.— Texarkana 1974, no writ), the court stated that the
ultimate question in a case involving good cause for delay in filing a claim is the
claimant's belief, which in that case was the belief that the claim had been filed by the
adjuster for the defendant. Good cause must arise within one year of the date of injury
and must continue until the time of filing. See Continental Casualty Co. v. Cook, 515
S.W.2d 261 (Tex. 1974); Texas Casualty Insurance Co. v. Beaseley, 391 S.W.2d 33
(Tex. 1965).

Occupational disease. In an occupational disease case, the phrase after the date
that Paul Payne knew or should have known that the injury may be related to the
employment must replace the phrase of the date of the injury in the second instruction
following the question.

289

PJC 20.5 WORKERS’ COMPENSATION— TIMELINESS OF RESPONDING

Minority or incompetent. Failure to file a claim for death benefits in the time
required bars the claim unless the person is a minor or incompetent. See Tex. Lab.
Code § 409.007; see also Petroleum Casualty Co. v. Canales, 499 S.W.2d 734 (Tex.
App.—Houston [1st Dist.] 1973, writ ref'd n.r.e.) (disqualification of minority consti-
tutes good cause for failure to file claim within time provided for in statute); Texas
Employers’ Insurance Ass'n v. Beckman, 207 S.W.2d 183 (Tex. App.—Austin 1947,
writ ref'd n.re.) (evidence supported finding that worker's incapacity prevented
timely filing claim).

290

CHAPTER 21

PJC 21.1

PIC 21.LÀ.

PJC 21.1B

WORKERS’ COMPENSATION—EXTENT-OF-INJURY DISPUTES
Extent of Injury—Question........... 0.00. c eee eee eee
Extent of Injury—Question—When Claimant Appeals. .....

Extent of Injury—Question—When Carrier Appeals .......

291

WORKERS’ COMPENSATION—EXTENT-OF-INJURY DISPUTES PJC 21.1

PJC 21.1 Extent of Injury—Question

PJC 21.14 Extent of Injury—Question—When Claimant Appeals
QUESTION

Does Paul Payne's compensable injury extend to and include the following
conditions:

[Insert applicable injury or diagnosis 1, 2, and 3 below.]
Answer “Yes” or “No.”
[Injury or diagnosis 1]?

Answer:

[Injury or diagnosis 2]?

Answer:

[Injury or diagnosis 3]?

Answer:

PJC 21.1B Extent of Injury—Question—When Carrier Appeals
QUESTION

Does Paul Payne's compensable injury not extend to and include the follow-
ing conditions:

[Insert applicable injury or diagnosis 1, 2, and 3 below.]

Answer “Yes” or “No.”
[Injury or diagnosis 1]?

Answer:

[Injury or diagnosis 2]?

Answer:

[/njury or diagnosis 3]?

Answer:

293

PJC 21.1 WORKERS? COMPENSATION—EXTENT-OF-INJURY DISPUTES

COMMENT

When to use. PJC 21.1 should be used when a party has appealed from a decision
of the Division of Workers' Compensation of the Texas Department of Insurance
(DWC) that concludes that the injured worker’s compensable injury does or does not
extend to and include another compensable injury.

Limitation on trial court's jurisdiction. The court's jurisdiction is limited to the
issues decided by the appeals panel and on which judicial review has been sought.
Tex. Lab. Code § 410.302(b). Accordingly, the trial court possesses jurisdiction over
and should submit questions regarding only the extent-of-injury issues that were
decided by the DWC and that have been appealed by an aggrieved party. See American
Motorists Insurance Co. v. Fodge, 63 S.W.3d 801, 804 (Tex. 2001).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of questions and instructions. Under the prior workers’ compensation
law, an injury to one body part or system could extend to and affect another body part
or system and thereby amplify the benefits otherwise due an injured worker. See Texas
Employers’ Insurance Ass'n v. Wilson, 522 S.W.2d 192, 194 (Tex. 1975); Travelers
Insurance Co. v. Marmolejo, 383 S.W.2d 380, 381—82 (Tex. 1964). In a case under the
current law (Tex. Lab. Code § 408.161), the court held that an injury may be direct or
indirect, but that if the injury is indirect it “must extend to and impair the statutory
body part." See Insurance Co. of State of Pennsylvania v. Muro, 347 S.W.3d 268, 276
(Tex. 2011).

Necessary definitions. Certain definitions may be necessary and should be sub-
mitted with these questions, for example, “injury” (see PJC 17.1), “course and scope
of employment” (see PJC 17.1), “producing cause" (see PJC 23.10), and “total loss of
use" (see PJC 25.2).

Specification of particular injury or diagnosis recommended. Although the
Workers’ Compensation Act does not require a specific finding for the part of the body
affected by the extension of the injury, the Committee recommends specificity regard-
ing the disputed issue as framed by the DWC because a party may not raise an issue in
the trial court that was not raised before a DWC appeals panel. Tex. Lab. Code
§ 410.302(b); State Office of Risk Management v. Martinez, 539 S.W.3d 266, 269 (Tex.
2017); Alexander v. Lockheed Martin Corp., 188 S.W.3d 348, 353 (Tex. App.—Fort
Worth 2006, pet. denied). If evidence supports extension to more than one part of the
body, each injury or diagnosis claimed should be submitted disjunctively and the jury
should be instructed to answer separately for each.

Caveat. Any question regarding extension of the compensable injury must be
worded in the conjunctive. Specifically, the question is whether the injury extended to
and affected other parts of the body. Texas Employers’ Insurance Assn v. Shannon,

294

WORKERS’ COMPENSATION—EXTENT-OF-INJURY DISPUTES PJC 21.1

462 S.W.2d 559, 562 (Tex. 1970) (citing Marmolejo, 383 S.W.2d 380). It is error to
inquire whether the injury extended to or affected other parts of the body. Shannon,
462 S.W.2d at 562 (Tex. 1970).

Instructions on pain and other subjective complaints. In Texas Employers’
Insurance Assn v. Espinosa, 367 S.W.2d 667, 669 (Tex. 1963), the supreme court held
that *mere proof" of pain, headaches, and dizziness following an injury to the eye,
without evidence causally linking those symptoms to a source other than an injury to
the eye, is legally insufficient to show an extension of a specific injury to other parts of
the body.

295

CHAPTER 22

PJC 22.1

PJC 722

PIC 22.3

PJC 22.4

PJC 22.5

PJC 22.6

WORKERS’ COMPENSATION—AVERAGE WEEKLY WAGE

Average Weekly Wage—Question ............00.0 eee eee 299
Wages—Definition for Average Weekly Wage............... 300
Average Weekly Wage—Definition ..............02.-0000- 301
Nonpecuniary Wages—Definition ...............000 eee 303
Similar Employees—Definition ............... 002.0 e ee eee 304
Similar Services—Definition ........... 0.2... c eee eee 305

297

WORKERS’ COMPENSATION—AVERAGE WEEKLY WAGE PJC 22.1

PJC 22.1 Average Weekly Wage—Question

QUESTION

Was Paul Payne's average weekly wage not [insert weekly wage found by
DWC]?
Answer “Yes” or “No.”

Answer:

If you answered the above question “Yes,” then answer the following ques-
tion. Otherwise do not answer the following question.

QUESTION

What was Paul Payne’s average weekly wage?
Answer in dollars and cents.

Answer:

COMMENT

When to use. PJC 22.1 may be submitted when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
involving an average weekly wage dispute.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1. The court should insert the
DWC’s decision regarding the average weekly wage in the first question above. The
second question should be conditioned on a finding that the average weekly wage is
not the average weekly wage found by the DWC.

Source of question. PJC 22.1 is based on Tex. Lab. Code § 408.041 and 28 Tex.
Admin. Code 8 128.3(g).

299

PJC 22.2 WORKERS’ COMPENSATION—AVERAGE WEEKLY WAGE

PJC 22.2 Wages— Definition for Average Weekly Wage

“Wages” means gross wages and includes all forms of remuneration payable
for a given period to an employee for personal services. The term includes the
market value of board, lodging, laundry, fuel, and any other advantage that can
be estimated in money that the employee receives from the employer as part of
the employee's remuneration. The term does not include payments made by an
employer to reimburse the employee for the use of the employee's equipment,
for paying helpers, for reimbursing actual expenses related to employment such
as travel-related expenses (e.g., meals, lodging, transportation, parking, tolls,
and porters), or for reimbursing mileage up to the state rate for mileage. The
term also does not include any nonpecuniary wages continued by the employer
after the compensable injury. However, if the employer discontinues providing
nonpecuniary wages, the discontinued nonpecuniary wages shall be included in
the average weekly wage.

COMMENT

When to use. PJC 22.2 should be used with PJC 22.1 when a party appeals a
decision of the Division of Workers' Compensation of the Texas Department of Insur-
ance (DWC) regarding the average weekly wage. Any specified item not raised by the
evidence should be omitted. When appropriate, the words “wage or salary" may be
substituted for “wages.”

Source of definition. PJC 22.2 is based on Tex. Lab. Code § 401.011(43) and 28
Tex. Admin. Code § 128.1(c). Note that the amounts estimated as reimbursement for
the use of an employee's equipment should not be included in calculating the
employee's average weekly wage. 28 Tex. Admin. Code § 128.1(c)(1); Texas Mutual
Insurance Co. v. Cruz, 307 S.W.3d 925, 931 (Tex. App.—Eastland 2010, pet. denied).

300

WORKERS’ COMPENSATION—AVERAGE WEEKLY WAGE PJC 22.3

PJC 22.3 Average Weekly Wage— Definition

"Average weekly wage" means the sum of the wages paid in the thirteen
consecutive weeks immediately preceding an injury divided by thirteen. If an
employee has worked for thirteen weeks or more prior to the date of injury, or
if the wage at the time of injury has not been fixed or cannot be determined, the
wages paid to the employee for thirteen weeks immediately preceding the
injury are added together and divided by thirteen to produce the average
weekly wage. If an employee has worked for less than thirteen weeks prior to
the date of injury, the wages paid to that employee are not considered. Instead
the wages used for the average weekly wage calculation are those paid by the
employer to a similar employee who performs similar services, but who earned
wages for at least thirteen weeks. If there is no similar employee at the
employer's business, the average weekly wage is based on the wages paid to a
similar employee who performed similar services in the same vicinity, for at
least thirteen weeks. When a similar employee is identified, the wages paid to
that person for the thirteen weeks immediately preceding the injury are added
together and divided by thirteen. The quotient is the average weekly wage. If it
would be improper to use the wages of the employee or the wages of a similar
employee due to the irregularity of the employment or because the employee
has lost time from work, without remuneration, during the thirteen weeks
immediately preceding the injury due to illness, weather, or other cause beyond
the control of the employee, the employee's average weekly wage may be
determined by any method that is fair, just, and reasonable to all parties.

COMMENT

When to use. PJC 22.3 should be used with PJC 22.1 when a party appeals a
decision of the Division of Workers' Compensation of the Texas Department of Insur-
ance (DWC) involving an average weekly wage dispute.

This definition of average weekly wage applies to cases in which the claimant
earned wages during the thirteen weeks immediately preceding the compensable
injury; or when there is evidence of a similar employee who earned wages during the
thirteen weeks immediately preceding the compensable injury; or when there is evi-
dence to support a just and fair determination of the average weekly wage. Any of the
specified items in the definition that are not raised by the evidence should be omitted.

Source of definition. PJC 22.3 is based on Tex. Lab. Code § 408.041 and 28 Tex.
Admin. Code § 128.3(d)-(g).

301

PJC 22.3 WORKERS’ COMPENSATION—AVERAGE WEEKLY WAGE

Employees with multiple employment. PJC 22.3 should not be used in cases
involving employees with multiple employment. For a definition of average weekly
wage for those employees, see Tex. Lab. Code § 408.042 and 28 Tex. Admin. Code
$ 128.1(h).

Part-time employees. PJC 22.3 should not be used in cases involving part-time
employees. For a definition of average weekly wage for part-time employees, see Tex.
Lab. Code § 408.042 and 28 Tex. Admin. Code § 128.4.

Seasonal employees. PJC 22.3 should not be used for seasonal employees. For a
definition of average weekly wage for those employees, see Tex. Lab. Code § 408.043
and 28 Tex. Admin. Code § 128.5.

Minors, apprentices, trainees, or students. PJC 22.3 should not be used for
employees who are minors, apprentices, trainees, or students. For a definition of aver-
age weekly wage for those employees, see Tex. Lab. Code § 408.044 and 28 Tex.
Admin. Code § 128.6.

School district employees. PJC 22.3 should not be used for employees of school
districts. For a definition of average weekly wage for those employees, see Tex. Lab.
Code § 408.0446 and 28 Tex. Admin. Code § 128.7.

302

WORKERS’ COMPENSATION—AVERAGE WEEKLY WAGE PJC 22.4

PJC 22.4 Nonpecuniary Wages— Definition

“Nonpecuniary wages" are wages paid to an employee in a form other than
money.

COMMENT

When to use. PJC 22.4 may be used with PJC 22.1 when there is a question
whether all or part of any remuneration used to calculate the average weekly wage is
nonpecuniary in nature.

Source of definition. PJC 22.4 is based on 28 Tex. Admin. Code § 126.1, which
lists examples of both pecuniary and nonpecuniary wages. See also Tex. Lab. Code
§ 408.045, which prohibits the inclusion of nonpecuniary wages in the computation of
average weekly wage.

303

PJC 22.5 WORKERS’ COMPENSATION—AVERAGE WEEKLY WAGE

PJC 22.5 Similar Employees— Definition

A "similar employee" is one with training, experience, skills, and wages that
are comparable to those of the injured employee. Age, gender, and race shall
not be considered.

COMMENT

When to use. PJC 22.5 may be used with PJC 22.1 when there is a question
whether the average weekly wage should be based on the wages of a similar employee
rather than on the wages of the claimant.

Source of definition. PJC 22.5 is based on Tex. Lab. Code § 408.046 and 28 Tex.
Admin. Code § 128.3(f).

304

WORKERS’ COMPENSATION—AVERAGE WEEKLY WAGE PJC 22.6

PJC 22.6 Similar Services— Definition

"Similar services" are tasks performed or services rendered that are compa-
rable in nature to, and in the same class as, those performed by the injured
employee and that are comparable in the number of hours normally worked.

COMMENT

When to use. PJC 22.6 may be used with PJC 22.1 when there is a question
whether the wages of a similar employee were received while performing similar ser-
vices.

Source of definition. PJC 22.6 is based on Tex. Lab. Code § 408.046 and 28 Tex.
Admin. Code § 128.3(f).

305

CHAPTER 23

PJC 23.1

PJC 23.1A

PJC 23.1B

PJG 23.2

PJC 23.3

PJC 23.4

PJC 23.4A

PJC 23.4B

PIC 235

PJC 23.6

PJC 23.7

PJC 23.8

PJC 23.9

PJC 23.10

WORKERS’ COMPENSATION— DISABILITY, MAXIMUM MEDICAL
IMPROVEMENT, AND IMPAIRMENT

Producing Cause of Disability—Question .................. 309

Producing Cause of Disability—Question— When Claimant

Appeals jus ker e res edes deme Oma aaa 309

Producing Cause of Disability—Question—When Carrier

Appeals «v cece as eee nee heehee eh eps dee Ge Qr s 309
Duration of Disability—Question.......... 0.00... eee eee ee 311
Wages Earned During Disability—Question ................ 312
Bona Fide Position of Employment—Question.............. 313

Bona Fide Position of Employment—Question— When
Claimant Appeals ......... 0.0... cece eee eee eee ee 313

Bona Fide Position of Employment—Question— When
Carrier Appeals... ced eaves candids e EV eas 313

Date Bona Fide Position of Employment Offer Received—
Questio ERERDRERRRERRR ERE RTT ERE 315

Weekly Earnings Offered through Bona Fide Position of
Employment—Question .......... 0.00 cece eee eens 316

Negating Division’s Finding of Maximum Medical

Improvement; Seeking Determination of Not at Maximum

Medical Improvement—Question............2..00 eee ee eee 317
Negating Division’s Finding of Maximum Medical

Improvement and Impairment Rating; Seeking Alternate

Certification—Question. ........ lisse ees 319

Maximum Medical Improvement and Impairment Rating
(Multiple Alternative Impairment Ratings)—Question ........ 321

Producing Cause—Definition ........... 0.000 eee eee eee 323

307

PIC 23.11

PJC 23.12

PJC 23.13

PJC 23.14

PIE 23,13

PJC 23.16

308

Disability—Definition «ia ci eder Roe koe i oe ok Bore 324
Wages—Definition for Disability, Maximum Medical

Improvement, and Impairment.................-..00 eee eee 325
Bona Fide Position of Employment—Definition ............ 326
Maximum Medical Improvement—Definition.............. 327
Impairment—Definition. .......... eseun eee eee ee 328
Impairment Rating—Definition................0...00 2 eee 329

WORKERS? COMPENSATION— DISABILITY, MMI & IMPAIRMENT PJC 23.1

PJC 23.1 Producing Cause of Disability —Question

PJC 23.1A Producing Cause of Disability —Question—When
Claimant Appeals

QUESTION
Was Paul Payne's compensable injury a producing cause of disability
between [date] and [date]?

"Producing cause" means a cause that is a substantial factor in bringing
about disability, and without which the disability would not have occurred.
There may be more than one producing cause.

"Disability" means the inability because of a compensable injury to obtain
and retain employment at wages equivalent to the preinjury wages.

Answer “Yes” or “No.”

Answer:

PJC 23.1B Producing Cause of Disability—Question—When Carrier
Appeals

QUESTION

Was Paul Payne’s compensable injury not a producing cause of disability
between [date] and [date]?

[Insert PJC 23.1A definitions of "producing cause” and "disability. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 23.1 may be used when a party appeals a decision of the Divi-
sion of Workers’ Compensation of the Texas Department of Insurance (DWC) about
the existence or duration of an injured worker’s disability.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

309

PJC 23.1 WORKERS’ COMPENSATION— DISABILITY, MMI & IMPAIRMENT

Source of question and instructions. “‘Disability’ simply means ‘the inability
because of a compensable injury to obtain and retain employment at wages equivalent
to the preinjury wage,' and thus results from any reduction in wage earning capacity."
Texas Workers' Compensation Commission v. Garcia, 893 S.W.2d 504, 513 (Tex.
1995) (quoting Tex. Lab. Code § 401.011(16)). See PJC 23.10 regarding the definition
of “producing cause” and PJC 23.11 regarding “disability.”

The concept of “disability” is used to measure or determine the monetary loss suf-
fered by an injured worker as the result of a compensable claim. An injured worker's
entitlement to temporary income benefits as a result of any disability begins on the day
after the date of injury and ends no later than the date that the employee reaches maxi-
mum medical improvement. See Garcia, 893 S.W.2d at 513. Disability disputes at the
agency level are adjudicated retroactively from the date of the contested case hearing.
The DWC usually frames the disability issue to cover a specific period of time that is
in dispute. The dates used in this question should mirror the dates used by the DWC to
frame the disputed issue.

310

WORKERS? COMPENSATION— DISABILITY, MMI & IMPAIRMENT PJC 23.2

PJC 23.2 Duration of Disability—Question

If you answered “Yes” to Question [23.14], then answer the follow-
ing question. Otherwise, do not answer the following question.

QUESTION

What is the duration of Paul Payne’s disability between [date] and [date]?
Beginning date:

Ending date:

COMMENT

When to use. PJC 23.2 should be used in any case involving a disability dispute
in which there has been a finding that disability exists. It should be conditioned on an
affirmative answer to PJC 23.1A.

The dates reflected in this question should mirror the dates reflected in those used to
submit PJC 23.1A. If the evidence suggests intermittent periods of disability, the
answer blanks should be modified as appropriate.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instructions. "Disability" simply means ‘the inability
because of a compensable injury to obtain and retain employment at wages equivalent
to the preinjury wage,’ and thus results from any reduction in wage earning capacity.”
Texas Workers' Compensation Commission v. Garcia, 893 S.W.2d 504, 513 (Tex.
1995) (quoting Tex. Lab. Code § 401.011(16)). See PJC 23.11 regarding the definition
of "disability."

311

PJC 23.3 WORKERS’ COMPENSATION— DISABILITY, MMI & IMPAIRMENT

PJC 23.3 Wages Earned During Disability—Question

If you answered “Yes” to Question [23.14], then answer the follow-
ing question. Otherwise, do not answer the following question.

QUESTION

Find the wages earned, if any, by Paul Payne for each week between [date]
and [date].

Week one:

Week two:

Week three:

Week four:

COMMENT

When to use. PJC 23.3 should be used in any case involving a disability dispute
in which there is evidence of postinjury earnings during the period in question. It
should be conditioned on a “Yes” answer to PJC 23.1A. If there is no evidence of post-
injury earnings, or if the evidence conclusively establishes the claimant’s weekly earn-
ings during each week in dispute, the question need not be submitted.

The dates in this question should mirror those in PJC 23.1A. The answer column
should list as many weeks as are described in the Division of Workers’ Compensation
of the Texas Department of Insurance’s (DWC's) disputed issue.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instructions. “‘Disability’ simply means ‘the inability
because of a compensable injury to obtain and retain employment at wages equivalent
to the preinjury wage,’ and thus results from any reduction in wage earning capacity.”
Texas Workers’ Compensation Commission v. Garcia, 893 S.W.2d 504, 513 (Tex.
1995) (quoting Tex. Lab. Code § 401.011(16)).

312

WORKERS’ COMPENSATION— DISABILITY, MMI & IMPAIRMENT PJC 23.4

PJC 23.4 Bona Fide Position of Employment—Question

PJC 23.44 Bona Fide Position of Employment—Question—When
Claimant Appeals

QUESTION

Was Paul Payne not offered a bona fide position of employment?

A “bona fide position of employment" is a position of employment that an
employee is reasonably capable of performing, given the physical condition of
the employee and the geographic accessibility of the position to the employee.

Answer “Yes” or “No.”

Answer:

PJC 23.4B Bona Fide Position of Employment—Question—When
Carrier Appeals

QUESTION
Was Paul Payne offered a bona fide position of employment?
[Insert PJC 23.4A definition of “bona fide position of employment. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 23.4 should be used when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
that the injured worker was or was not offered a bona fide position of employment.
See PJC 23.13 regarding the definition of “bona fide position of employment.”

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

313

PJC 23.4 WORKERS’ COMPENSATION— DISABILITY, MMI & IMPAIRMENT

after the injury are equal to the weekly wage for the position offered to the employee."
Tex. Lab. Code § 408.103(e). See also Tex. Lab. Code § 408.144(c), which contains a
substantially identical provision for supplemental income benefits cases.

The former law, article 8306, section 12a, provided that "[1]f the injured employee
refuses employment reasonably suited to his incapacity and physical condition pro-
cured for him in the locality where injured or at a place agreeable to him, he shall not
be entitled to compensation during the period of such refusal, unless in opinion of the
board such refusal is justifiable.” See Texas Employers’ Insurance Assn v. McNorton,
92 S.W.2d 562, 568—69 (Tex. App.— Dallas 1936), opinion adopted, 122 S.W.2d 1043
(Tex. Comm’n App. 1939). The current law does not speak in terms of “refusal” of
employment or whether such refusal is “justified.” See Tex. Lab. Code § 408.103(e).
Accordingly, no inquiry about whether the offer of employment was refused, or
whether such refusal was justifiable, should be made.

314

WORKERS? COMPENSATION— DISABILITY, MMI & IMPAIRMENT PJC 23.5

PJC 23.5 Date Bona Fide Position of Employment Offer
Received—Question

If you answered “Yes” to Question [23.4B], then answer the follow-
ing question. Otherwise, do not answer the following question.

QUESTION

What is the date that Paul Payne was offered the bona fide position of
employment?
Answer by month, day, and year.

Answer:

COMMENT

When to use. PJC 23.5 should be used when a carrier appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
that the injured worker was not offered a bona fide position of employment. PJC 23.5
should be conditioned on a negative answer to PJC 23.4A or an affirmative answer to
PJC 23.4B.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instructions. For purposes of calculating the amount of
temporary income benefits owed an injured worker, the Code provides that “if an
employee is offered a bona fide position of employment that the employee is reason-
ably capable of performing, given the physical condition of the employee and the geo-
graphic accessibility of the position to the employee, the employee’s weekly earnings
after the injury are equal to the weekly wage for the position offered to the employee.”
Tex. Lab. Code § 408.103(e). See also Tex. Lab. Code § 408.144(c), which contains a
similar provision for supplemental income benefits cases.

315

PJC 23.6 WORKERS’ COMPENSATION— DISABILITY, MMI & IMPAIRMENT

PJC 23.6 Weekly Earnings Offered through Bona Fide Position of
Employment—Question

If you answered “Yes” to Question [23.4B], then answer the follow-
ing question. Otherwise, do not answer the following question.

QUESTION

What are the weekly earnings that Paul Payne was offered pursuant to the
bona fide position of employment?

Weekly earnings offered:

COMMENT

When to use. PJC 23.6 should be used when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
that the injured worker was not offered a bona fide position of employment or when
there is a dispute over the wages offered to the worker. PJC 23.6 should be conditioned
on an affirmative answer to PJC 23.4B. PJC 23.6 may be submitted without a condi-
tioning instruction if the DWC’s decision that the claimant was offered a bona fide
position of employment has become final or if it is undisputed that a bona fide position
was offered but there is a dispute about the amount of weekly earnings offered.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instructions. For purposes of calculating the amount of
temporary income benefits owed to an injured worker, the Code provides that “if an
employee is offered a bona fide position of employment that the employee is reason-
ably capable of performing, given the physical condition of the employee and the geo-
graphic accessibility of the position to the employee, the employee's weekly earnings
after the injury are equal to the weekly wage for the position offered to the employee."
Tex. Lab. Code § 408.103(e). See also Tex. Lab. Code § 408.144(c), which contains a
similar provision for supplemental income benefits cases.

Variable weekly earnings or multiple offers. PJC 23.6 should be modified to

permit responses on a per-week basis if the evidence indicates that the weekly wages
offered varied from week to week or from offer to offer.

316

WORKERS? COMPENSATION— DISABILITY, MMI & IMPAIRMENT PJC 23.7

PJC 23.7 Negating Division's Finding of Maximum Medical
Improvement; Seeking Determination of Not at
Maximum Medical Improvement—Question

QUESTION

Has Paul Payne not reached maximum medical improvement?

“Maximum medical improvement” means the earliest date after which,
based on reasonable medical probability, further material recovery from or last-
ing improvement to an injury can no longer reasonably be anticipated.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 23.7 should be used when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
that the injured worker is at maximum medical improvement and seeks to persuade the
jury that the employee has not yet reached maximum medical improvement. For cases
in which a party appeals a decision that the worker has reached maximum medical
improvement with a particular impairment rating, and seeks to persuade the jury to
adopt a different date of maximum medical improvement and impairment rating, PJC
23.8 or 23.9 should be used. See PJC 23.14 regarding the definition of “maximum
medical improvement.”

Burden of proof. The party who appeals a decision that the injured worker is not
at maximum medical improvement may be either the claimant or the carrier, depend-
ing on the facts of each individual case. The burden of proof should be placed appro-
priately in accordance with the decision of the appeals panel. See PJC 15.1.

Source of question and instructions. “Maximum medical improvement” is the
point when further material recovery or lasting improvement can no longer be reason-
ably anticipated or two years after income benefits begin to accrue, whichever is
sooner. Tex. Lab. Code § 401.011(30); Texas Workers’ Compensation Commission v.
Garcia, 893 S.W.2d 504, 513 (Tex. 1995).

Caveat. While the Code requires that the trial court adopt a specific impairment
rating—see Tex. Lab. Code § 410.306—there is no similar requirement with regard to
the maximum medical improvement date of a claimant. However, the supreme court
has noted that “[a]ny dispute that challenges an impairment rating’s finality necessar-
ily implicates the date of maximum medical improvement and the amount paid as tem-
porary income benefits.” Rodriguez v. Service Lloyds Insurance Co., 997 S.W.2d 248,

317

PJC 23.7 WORKERS? COMPENSATION— DISABILITY, MMI & IMPAIRMENT

254 (Tex. 1999); see also Fireman's Fund Insurance Co. v. Weeks, 259 S.W.3d 335,
343 (Tex. App.—El Paso 2008, pet. denied) (observing that DWC has noted that *con-
cepts of MMI and IR are somewhat inextricably intertwined, and an IR cannot be
assessed until MMI is reached”). DWC Rule 131.1(b)(2) states, “MMI must be certi-
fied before an impairment rating is assigned and the impairment rating must be
assigned for the injured employee’s condition on the date of MMI.” DWC Rule
131.1(c)(3) states, “Assignment of an impairment rating for the current compensable
injury shall be based on the injured employee’s condition on the MMI date considering
the medical record and the certifying examination.”

318

WORKERS? COMPENSATION— DISABILITY, MMI & IMPAIRMENT PJC 23.8

PJC 23.8 Negating Division's Finding of Maximum Medical
Improvement and Impairment Rating; Seeking Alternate
Certification—Question

QUESTION
Did Paul Payne not reach maximum medical improvement on [date] with an
impairment rating of [impairment rating]?

“Maximum medical improvement" means the earliest date after which,
based on reasonable medical probability, further material recovery from or last-
ing improvement to an injury can no longer reasonably be anticipated.

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 23.8 should be used when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
that the injured worker is at maximum medical improvement and has an impairment
rating and when that party seeks a determination that the injured worker has a single
alternative date of maximum medical improvement and impairment rating. For cases
in which multiple alternative impairment ratings are in evidence, PJC 23.9 should be
used. For cases in which a party seeks a decision that the injured worker has not
reached maximum medical improvement, PJC 23.7 should be used. See PJC 23.14
regarding the definition of “maximum medical improvement.”

319

PJC 23.8 WORKERS’ COMPENSATION— DISABILITY, MMI & IMPAIRMENT

porary income benefits." Rodriguez v. Service Lloyds Insurance Co., 997 S.W.2d 248,
254 (Tex. 1999); see also Fireman's Fund Insurance Co. v. Weeks, 259 S.W.3d 335,
343 (Tex. App.—El Paso 2008, pet. denied) (observing that DWC has noted that *con-
cepts of MMI and IR are somewhat inextricably intertwined, and an IR cannot be
assessed until MMI is reached"). DWC Rule 131.1(b)(2) states, *MMI must be certi-
fied before an impairment rating is assigned and the impairment rating must be
assigned for the injured employee's condition on the date of MMI.” DWC Rule
131.1(c)(3) states, *Assignment of an impairment rating for the current compensable
injury shall be based on the injured employee's condition on the MMI date considering
the medical record and the certifying examination."

320

WORKERS? COMPENSATION— DISABILITY, MMI & IMPAIRMENT PJC 23.9

PJC 23.9 Maximum Medical Improvement and Impairment Rating
(Multiple Alternative Impairment Ratings)— Question

If you answered “Yes” to Question [23.8], then answer the following
question. Otherwise, do not answer the following question.

QUESTION

Find Paul Payne's date of maximum medical improvement and impairment
rating from the following certification options. Answer by including month,
day, and year.

[Certification option 1]:
[Certification option 2]:
[Certification option 3]:

Answer:

COMMENT

When to use. PJC 23.9 should be used when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
that involves the issues of maximum medical improvement and impairment rating, the
jury has answered the question presented in PJC 23.8 in favor of the appealing party,
and the evidence presents more than one alternative impairment rating. The jury
should be permitted to find alternative certifications of maximum medical improve-
ment and impairment only when the appealing party has secured a finding that negates
a DWC determination that the claimant reached maximum medical improvement with
a specific impairment rating.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instructions. An employee receives impairment income
benefits according to the employee’s impairment rating, which is the percentage of the
whole body’s permanent impairment. See Tex. Lab. Code §§ 401.011(24), 408.124. To
determine the impairment rating, an examining doctor evaluates the permanent effect
of the employee’s injury under statutory guidelines. See Tex. Lab. Code § 408.124.
The doctor expresses the rating as a percentage of permanent impairment to the whole
body. See Tex. Lab. Code §§ 401.011(24), 408.124. The greater this percentage, the
greater the amount of impairment income benefits the employee receives. See Texas
Workers’ Compensation Commission v. Garcia, 893 S.W.2d 504, 514 (Tex. 1995).

321

PJC 23.9 WORKERS’ COMPENSATION— DISABILITY, MMI & IMPAIRMENT

The impairment rating may also qualify an injured worker for supplemental income
benefits, which provide long-term disability compensation. See Tex. Lab. Code
§ 408.142; see also Garcia, 893 S.W.2d at 514.

A doctor will not certify an impairment rating until the employee reaches “maxi-
mum medical improvement," the point at which the employee's injury will not materi-
ally improve with additional rest or treatment. See Rodriguez v. Service Lloyds
Insurance Co., 997 S.W.2d 248, 253 (Tex. 1999); Tex. Lab. Code § 408.121.

“Maximum medical improvement" is the point when further material recovery or
lasting improvement can no longer be reasonably anticipated or two years after
income benefits begin to accrue, whichever is sooner. Tex. Lab. Code § 401.011(30);
Garcia, 893 S.W.2d at 513.

Tex. Lab. Code § 410.306(c) provides that “[e]xcept as provided by Section
410.307, evidence of extent of impairment shall be limited to that presented to the
division. The court or jury, in its determination of the extent of impairment, shall adopt
one of the impairment ratings under Subchapter G, Chapter 408."

322

WORKERS? COMPENSATION— DISABILITY, MMI & IMPAIRMENT PJC 23.10

PJC 23.10 Producing Cause— Definition

"Producing cause" means a cause that is a substantial factor in bringing
about an injury, and without which the injury would not have occurred. There
may be more than one producing cause.

COMMENT

When to use. PJC 23.10 may be used in accidental injury, repetitious trauma, or
occupational disease cases in which an injury is alleged to extend to produce entitle-
ment to benefits. See generally PJC 23.1 and chapter 25 in this volume.

Source of definition. “Though the Texas Workers’ Compensation Act does not
use the phrase ‘producing cause,’ this has been the standard for proving causation in
workers' compensation claims for more than eighty years." Transcontinental Insur-
ance Co. v. Crump, 330 S.W.3d 211, 221 (Tex. 2010).

The Crump court observed that the element common to both proximate cause and
producing cause is actual causation in fact, which requires proof that an act or omis-
sion was a substantial factor in bringing about injury that would not otherwise have
occurred. Relying on Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007), a prod-
ucts liability case, the court held that producing cause and cause in fact are conceptu-
ally identical:

Defining producing cause as being a substantial factor in bringing about an
injury, and without which the injury would not have occurred, is easily
understood and conveys the essential components of producing cause that
(1) the cause must be a substantial cause of the event in issue and (2) it
must be a but-for cause, namely one without which the event would not
have occurred.

Crump, 330 S.W.3d at 223 (quoting Ledesma, 242 S.W.3d at 46). The court concluded
that “the producing cause inquiry in workers’ compensation cases is conceptually no
different from the cause in fact inquiry in negligence cases and the producing cause
inquiry in other substantive contexts.” Crump, 330 S.W.3d at 223.

323

PJC 23.11 WORKERS’ COMPENSATION— DISABILITY, MMI & IMPAIRMENT

PJC 23.11 Disability— Definition

"Disability" means the inability because of a compensable injury to obtain
and retain employment at wages equivalent to the preinjury wage.

COMMENT

When to use. PJC 23.11 may be used in any case in which the injured worker and
the insurance carrier disagree about the employee's entitlement to temporary income
benefits. A compensably injured employee is entitled to temporary income benefits
when he has a disability and has not reached maximum medical impairment. See PJC
23.1 and 23.2 for questions on disability.

Source of definition. Concepts of “impairment” and “disability” are not inter-
changeable under the Workers’ Compensation Act. “Impairment” means “any ana-
tomic or functional abnormality or loss existing after maximum medical improvement
that results from a compensable injury and is reasonably presumed to be permanent.”
Tex. Lab. Code § 401.011(23); Insurance Co. of State of Pennsylvania v. Muro, 347
S.W.3d 268, 275 (Tex. 2011). “Disability” means “the inability because of a compen-
sable injury to obtain and retain employment at wages equivalent to the preinjury
wage.” Tex. Lab. Code § 401.011(16); Muro, 347 S.W.3d at 275.

324

WORKERS? COMPENSATION— DISABILITY, MMI & IMPAIRMENT PJC 23.12

PJC 23.12 Wages— Definition for Disability, Maximum Medical
Improvement, and Impairment

"Wages" includes all forms of remuneration payable for a given period to an
employee for personal services. The term includes the market value of board,
lodging, laundry, fuel, and any other advantage that can be estimated in money
that the employee receives from the employer as part of the employee's remu-
neration.

COMMENT

When to use. PJC 23.12 may be used when a party disputes whether the injured
worker has received remuneration following a compensable injury that may affect his
entitlement to, or the amount of, temporary income benefits or supplemental income
benefits. See PJC 23.3 for a question on wages earned during disability.

Source of definition. The Labor Code defines “wages” as set out in PJC 23.12.
Tex. Lab. Code § 401.011(43). The Administrative Code further defines the term. 28
Tex. Admin. Code § 128.1. See Texas Mutual Insurance Co. v. Cruz, 307 S.W.3d 925,
930 (Tex. App.—Eastland 2010, pet. denied), for further discussion.

325

PJC 23.13 WORKERS’ COMPENSATION— DISABILITY, MMI & IMPAIRMENT

PJC 23.13 Bona Fide Position of Employment— Definition

COMMENT

When to use. PJC 23.13 should be used when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
that concludes that the injured worker was or was not offered a bona fide position of
employment. The Code requires that a bona fide offer of employment must be in writ-
ing, accompanied by a Work Status Report, and contain the location at which the
employee will be working; the schedule the employee will be working; the wages that
the employee will be paid; a description of the physical and time requirements that the
position will entail; and a statement that the employer will only assign tasks consistent
with the employee's physical abilities, knowledge, and skills and will provide training
if necessary. 28 Tex. Admin. Code 8 129.6. See PJC 23.4 for a question on bona fide
position of employment.

Source of definition. For purposes of calculating the amount of temporary
income benefits owed to an injured worker, the Code provides that “if an employee is
offered a bona fide position of employment that the employee is reasonably capable of
performing, given the physical condition of the employee and the geographic accessi-
bility of the position to the employee, the employee's weekly earnings after the injury
are equal to the weekly wage for the position offered to the employee." Tex. Lab. Code
§ 408.103(e). See also Tex. Lab. Code § 408.144(c), which contains a similar provi-
sion for supplemental income benefits cases.

326

WORKERS? COMPENSATION— DISABILITY, MMI & IMPAIRMENT PJC 23.14

PJC 23.14 Maximum Medical Improvement— Definition

COMMENT

When to use. PJC 23.14 may be used when a party disputes whether the injured
worker has reached maximum medical improvement and may be evaluated for an
impairment rating. For questions on maximum medical improvement, see PJC 23.7—
23.9.

Source of definition. The date of maximum medical improvement is fixed when
an examining doctor certifies that no further material recovery or lasting improvement
can reasonably be anticipated. Rodriguez v. Service Lloyds Insurance Co., 997 S.W.2d
248, 253 (Tex. 1999); Tex. Lab. Code $8 401.011(30), 408.123.

327

PJC 23.15 WORKERS’ COMPENSATION— DISABILITY, MMI & IMPAIRMENT

PJC 23.15 Impairment—Definition

“Impairment” means any anatomic or functional abnormality or loss existing
after maximum medical improvement that results from a compensable injury
and is reasonably presumed to be permanent.

COMMENT

When to use. PJC 23.15 may be used when a party has appealed a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
involving the validity, existence, or percentage of an injured worker's impairment rat-
ing. See PJC 23.8 and 23.9 for questions on impairment rating.

328

WORKERS? COMPENSATION— DISABILITY, MMI & IMPAIRMENT PJC 23.16

PJC 23.16 Impairment Rating— Definition

"Impairment rating" means the percentage of permanent impairment of the
whole body resulting from a compensable injury.

COMMENT

When to use. PJC 23.16 may be used when a party appeals a decision of the Divi-
sion of Workers' Compensation of the Texas Department of Insurance (DWC) about
the validity, existence, or percentage of an injured worker's impairment rating. See
PJC 23.8 and 23.9 for questions on impairment rating.

Source of definition. An employee receives impairment income benefits accord-
ing to the employee's impairment rating, which is the percentage of the whole body's
permanent impairment. See Tex. Lab. Code $8 401.011(24), 408.124. To determine the
impairment rating, an examining doctor evaluates the permanent effect of the
employee's injury under statutory guidelines. See Tex. Lab. Code § 408.124. The doc-
tor expresses the rating as a percentage of permanent impairment to the whole body.
See Tex. Lab. Code $8 401.011(24), 408.124. The greater this percentage, the greater
the amount of impairment income benefits the employee receives. See Texas Workers’
Compensation Commission v. Garcia, 893 S.W.2d 504, 514 (Tex. 1995).

A doctor will not certify an impairment rating until the employee reaches “maxi-
mum medical improvement," the point at which the employee's injury will not materi-
ally improve with additional rest or treatment. Rodriguez v. Service Lloyds Insurance
Co., 997 S.W.2d 248, 253 (Tex. 1999); Tex. Lab. Code § 408.121.

329

CHAPTER 24

PJC 24.1

PJC 24.2

PJC 24.2A

PJC 24.2B

PJC 24.3

PJC 24.4

PJC 24.4A

PJC 24.4B

PJC 24.5

PJC 24.6

PJC 24.6A

PJC 24.6B

WORKERS’ COMPENSATION— SUPPLEMENTAL INCOME BENEFITS
Supplemental Income Benefits Entitlement (Comment) ....... 333
Reduced Earnings as Direct Result of Impairment—Question . . 334

Reduced Earnings as Direct Result of Impairment—

Question—When Claimant Appeals................0.04- 334
Reduced Earnings as Direct Result of Impairment—
Question—When Carrier Appeals .............0.. 00 eee 334
Reduced Earnings as Direct Result of
Impairment—Instruction. ......... sse 335
Active Effort to Obtain Employment—Question............. 336

Active Effort to Obtain Employment—Question—When

Claimant Appeals ......... 0.0. ccc cect esee 336

Active Effort to Obtain Employment—Question—When

Carrier Appeals ..... 0.0... cece eens 336
Active Effort to Obtain Employment—Instruction ........... 337
Refusal of Vocational Rehabilitation Services—Question...... 339

Refusal of Vocational Rehabilitation Services—Question—
When Claimant Appeals ............. 00 ccc cee ee eee 339

Refusal of Vocational Rehabilitation Services—Question—
When Carrier Appeals... 0.2.0... cee ees 339

331

WORKERS? COMPENSATION—SUPPLEMENTAL INCOME BENEFITS PJC 24.1

PJC 24.1 Supplemental Income Benefits Entitlement (Comment)

Supplemental income benefits (SIBs) provide long-term disability compensation.
They become payable upon termination of the impairment benefits if the claimant has
an impairment rating of 15 percent or more and has not returned to work or has
returned to work and is earning less than 80 percent of his preinjury average weekly
wage as a direct result of the impairment. Tex. Lab. Code § 408.142; see also Texas
Workers ' Compensation Commission v. Garcia, 893 S.W.2d 504, 514 (Tex. 1995).

Other criteria for entitlement to SIBs are that the claimant has not elected to com-
mute a portion of the impairment income benefit under Tex. Lab. Code § 408.128 and
has demonstrated an active effort to obtain employment in accordance with Tex. Lab.
Code § 408.1415. Tex. Lab. Code § 408.142(a). Tex. Lab. Code § 408.1415 directs the
Commissioner of Workers’ Compensation of the Texas Department of Insurance
(DWC) to adopt compliance standards that define an active job search effort. To sat-
isfy this obligation, the commissioner adopted 28 Tex. Admin. Code § 130.102 (Rule
130.102). That rule applies whether the award of SIBs is made by the DWC or by the
court. See Tex. Lab. Code § 408.141. Accordingly, some of the questions and defini-
tions in this chapter are derived from Rule 130.102.

SIBs are adjudicated and paid on a quarterly basis. An employee's entitlement to
SIBs is determined retrospectively and paid prospectively. An employee's active job
search must take place during each week of the qualifying period for the quarter in dis-
pute. The qualifying period is a thirteen-week period that begins fifteen weeks before
the thirteen-week SIBs quarter in dispute starts. The last two weeks of the fifteen-week
period is the “filing period,” during which the employee documents his efforts, com-
pletes an application, and files that application with the insurance carrier.

The DWC, rather than the court, will calculate the applicable beginning and ending
dates for each disputed SIBs qualifying period or quarter.

The statute and rules produce a scheme under which the jury must evaluate an
employee's job search efforts during each thirteen-week qualifying period in order to
qualify for benefit payments during each subsequent thirteen-week compensable quar-
ter. Questions, definitions, and instructions should use the beginning and ending dates
determined by the DWC for questions concerning an employee's efforts during each
qualifying period for any particular disputed SIBs quarter.

333

PJC 24.2 WORKERS’ COMPENSATION—SUPPLEMENTAL INCOME BENEFITS

PJC 24.2 Reduced Earnings as Direct Result of Impairment—
Question

PJC 24.2A Reduced Earnings as Direct Result of Impairment—
Question—When Claimant Appeals

QUESTION

Did Paul Payne earn less than 80 percent of his average weekly wage
between [date] and [date] as a direct result of his impairment from the compen-
sable injury?

Answer “Yes” or “No.”

Answer:

PJC 24.2B Reduced Earnings as Direct Result of Impairment—
Question—When Carrier Appeals

QUESTION

Did Paul Payne not earn less than 80 percent of his average weekly wage
between [date] and [date] as a direct result of his impairment from the compen-
sable injury?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 24.2 should be used when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
that the injured worker did or did not earn less than 80 percent of his average weekly
wage during a supplemental income benefits (SIBs) qualifying period as a direct result
of his impairment from the compensable injury. The dates used in PJC 24.2 should
reflect the dates of the SIBs qualifying period in dispute, as determined by the Divi-
sion’s decision and order. See PJC 24.3 for an accompanying instruction.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of questions and instructions. PJC 24.2 is derived from Tex. Lab. Code
§ 408.142 and 28 Tex. Admin. Code § 130.102(b), (c).

334

WORKERS? COMPENSATION—SUPPLEMENTAL INCOME BENEFITS PJC 24.3

PJC 24.3 Reduced Earnings as Direct Result of Impairment—
Instruction

An injured employee has earned less than 80 percent of the injured
employee's average weekly wage as a direct result of the impairment from the
compensable injury if the impairment from the compensable injury is a produc-
ing cause of the reduced earnings.

COMMENT

When to use. PJC 24.3 should accompany PJC 24.2 if there is a question whether
the injured employee has earned less than 80 percent of his preinjury average weekly
wage during the applicable qualifying period as a direct result of the impairment from
the compensable injury.

Source of instruction. PJC 24.3 is derived from 28 Tex. Admin. Code
$ 130.102(c).

335

PJC 24.4 WORKERS’ COMPENSATION—SUPPLEMENTAL INCOME BENEFITS

PJC 24.4 Active Effort to Obtain Employment—Question

PJC 24.44 Active Effort to Obtain Employment—Question—When
Claimant Appeals

QUESTION

Did Paul Payne demonstrate an active effort to obtain employment each
week between [date] and [date]?

Answer “Yes” or “No.”

Answer:

PJC 24.4B Active Effort to Obtain Employment—Question—When
Carrier Appeals

QUESTION

Did Paul Payne fail to demonstrate an active effort to obtain employment
each week between [date] and [date]?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 24.4 should be used to appeal a decision of the Division of
Worker’s Compensation of the Texas Department of Insurance (DWC) that the injured
worker did or did not make an active effort to obtain employment each week of the
qualifying period. The dates used in PJC 24.4 should reflect the dates of the supple-
mental income benefits qualifying period in dispute, as determined by the Division’s
decision and order.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question. PJC 24.4 is derived from Tex. Lab. Code §§ 408.1415,
408.142 and 28 Tex. Admin. Code § 130.102(c), (d).

336

WORKERS? COMPENSATION—SUPPLEMENTAL INCOME BENEFITS PJC 24.5

PJC 24.5 Active Effort to Obtain Employment—Instruction

An injured employee has demonstrated an active effort to obtain employ-
ment when he has met at least one of the following work search requirements
each week during the entire qualifying period:

1. He has returned to work in a position that is commensurate with the
injured employee's ability to work;

2. He has actively participated in a vocational rehabilitation program;

3. He has actively participated in work search efforts conducted
through the Texas Workforce Commission;

4. He has performed active work search efforts documented by job
applications;

5. He has been unable to perform any type of work in any capacity,
has provided a narrative report from a doctor that specifically explains how
the injury causes a total inability to work, and no other records show that the
injured employee is able to return to work; or

6. He has not met at least one of the work search requirements in any
week during the qualifying period but had reasonable grounds for failing to
comply with that work search requirement.

An injured employee shall provide documentation sufficient to establish that
he or she has actively participated in a vocational rehabilitation program during
the qualifying period.

An injured employee shall provide documentation sufficient to establish that
he or she has, each week during the qualifying period, made [number] job
applications or work search contacts.

COMMENT

When to use. PJC 24.5 should be submitted in conjunction with PJC 24.4 if there
is a question whether the injured employee has demonstrated an active effort to obtain
employment during the applicable qualifying period. Only the elements applicable to
the particular case should be included.

The instructions on documentation requirements regarding vocational rehabilitation
and work search requirements should also be included as appropriate. The number of
weekly job applications or work source contacts is consistent with the number of such
contacts established by the Texas Workforce Commission for receipt of unemploy-

337

PJC 24.5 WORKERS’ COMPENSATION—SUPPLEMENTAL INCOME BENEFITS

ment benefits in the injured employee's county of residence. See 28 Tex. Admin. Code
§ 130.102(f).

Source of instruction. PJC 24.5 is derived from 28 Tex. Admin. Code
§ 130.102(d), (e), (f).

338

WORKERS? COMPENSATION—SUPPLEMENTAL INCOME BENEFITS PJC 24.6

PJC 24.6 Refusal of Vocational Rehabilitation Services—Question

PJC 24.6A Refusal of Vocational Rehabilitation Services—
Question—When Claimant Appeals

QUESTION

Did Paul Payne accept vocational rehabilitation services or cooperate with
vocational rehabilitation services provided between [date] and [date]?
Answer “Yes” or “No.”

Answer:

PJC 24.6B Refusal of Vocational Rehabilitation Services—
Question—When Carrier Appeals

QUESTION

Did Paul Payne refuse vocational rehabilitation services or refuse to cooper-
ate with vocational rehabilitation services provided at any time between [date]
and [date]?

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 24.6 should be used when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
that the injured worker did or did not refuse the services of or refuse to cooperate with
services provided by the Texas Workforce Commission or by a private provider of
vocational rehabilitation services. The dates used in PJC 24.6 should reflect the dates
of the supplemental income benefits (SIBs) qualifying period in dispute, as determined
by the Division’s decision and order.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of questions and instructions. An injured employee, in a vocational
rehabilitation program as defined in 28 Tex. Admin. Code § 130.101(8), who refuses
vocational rehabilitation services or refuses to cooperate with services provided at any

339

PJC 24.6 WORKERS’ COMPENSATION—SUPPLEMENTAL INCOME BENEFITS

time during a qualifying period is not entitled to SIBs for the related quarter. See Tex.
Lab. Code § 408.150; 28 Tex. Admin. Code § 130.106(c).

340

CHAPTER 25

PJC 25.1

PJC 25.1A

PJC 25.1B

PIC 25.2

PJC 25.2A

PJC 25.2B

PJC 25.3

PJC 25.4

PJC 25.4A

PJC 25.4B

PIC 25,5

PJC 25.5A

PJC 25.5B

PJC 25.6

PJC 25.6A

WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS

Injury Causing Total Loss of Use—Question................ 343

Injury Causing Total Loss of Use—Question—When
Claimant Appeals ......... 0.0.0 c ccc cece eens 343

Injury Causing Total Loss of Use—Question—When Carrier
Appeals 1 Re I dd rU EATEN Jods EE 343

Producing Cause of Total Loss of Use of Two Members—
QUESTIONE: c oS ROSE ERU ERUNT RE ANTE REN URINE 345

Producing Cause of Total Loss of Use of Two Members—
Question—When Claimant Appeals..................04- 345

Producing Cause of Total Loss of Use of Two Members—

Question—When Carrier Appeals .............0..0 0000s 345
Duration of Total Loss of Use—Question................00. 347
Total and Permanent Loss of Vision—Question.............. 349

Total and Permanent Loss of Vision—Question—When
Claimant Appeals ......... 0... ccc cece eee ees 349

Total and Permanent Loss of Vision—Question—When
Carrier Appeals ... eise sores Rr Rr rh eae ae 349

Spinal Injury Resulting in Paralysis—Question.............. 351

Spinal Injury Resulting in Paralysis—Question—When
Claimant Appeals ......... 0... ccc cece eee ees 351

Spinal Injury Resulting in Paralysis—Question—When
Carrier Appeals .... 0.0... ccc ccc ences 351

Incurable Insanity or Imbecility—Question................. 353

Incurable Insanity or Imbecility—Question—When
Claimant Appeals ......... 0... ccc cette 353

341

PJC 25.6B Incurable Insanity or Imbecility—Question—When Carrier
Appeals, «4e eR AU xd ER EX REA AR aoa’ 353

PIC 25.7 Burns to the Body—Question
PJC 25.7A Burns to the Body—Question— When Claimant Appeals... 355

PJC 25.7B Burns to the Body—Question— When Carrier Appeals. .... 355

342

WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS PJC 25.1

PJC 25.1 Injury Causing Total Loss of Use—Question

PJC 25.1A Injury Causing Total Loss of Use—Question—When
Claimant Appeals

QUESTION

Did Paul Payne suffer an injury to his [insert applicable body part] that was
a producing cause of the total loss of use of his [insert applicable body part]?

"Producing cause" means a cause that is a substantial factor in bringing
about an injury, and without which the injury would not have occurred. There
may be more than one producing cause.

“Total loss of use" of a member of the body exists whenever by reason of
injury such member no longer possesses any substantial utility as a member of
the body or the condition of the injured member is such that the worker cannot
get and keep employment requiring the use of such member.

Answer “Yes” or “No.”

Answer:

PJC 25.1B Injury Causing Total Loss of Use—Question—When
Carrier Appeals

QUESTION

Did Paul Payne not suffer an injury to his [insert applicable body part] that
was a producing cause of the total loss of use of his [insert applicable body
part]?

[Insert PJC 25.14 definitions of "producing cause" and "total loss of use. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 25.1 should be used if there is a dispute about the existence of
an injury to the enumerated members found in Tex. Lab. Code § 408.161(a)(2)-(5) or

343

PJC 25.1 WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS

a dispute about the nature or extent of the worker's total loss of use from any of those
enumerated members.

Limitation on trial court's jurisdiction. The court's jurisdiction is limited to the
issues decided by the appeals panel and on which judicial review has been sought.
Tex. Lab. Code § 410.302(b). Accordingly, the trial court possesses jurisdiction over
and should submit questions regarding only the extent-of-injury issues that were
decided by the DWC and that have been appealed by an aggrieved party. See Texas
Mutual Insurance Co. v. Ruttiger, 381 S.W.3d 430, 436-37 (Tex. 2012).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Producing cause. Regarding the definition of “producing cause," see PJC 23.10.

Total loss of use. Regarding the definition of “total loss of use," see Dallas
National Insurance Co. v. De La Cruz, 470 S.W.3d 56, 58 (Tex. 2015); Insurance Co.
of State of Pennsylvania v. Muro, 347 S.W.3d 268 (Tex. 2011) (citing Travelers Insur-
ance Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex. 1962)). Under Seabolt, it is preferable
to use the phrase “total loss of use" rather than merely “loss of use" in the question.
Seabolt, 361 S.W.2d at 205.

In Muro, the supreme court recognized that the legislature has limited the award of
lifetime income benefits to the specific injuries and body parts enumerated in Tex.
Lab. Code § 408.161 and that nothing in the statute authorizes the substitution of other
injuries or body parts for those enumerated. Muro, 347 S.W.3d at 276. While the injury
to the statutory body part may be direct or indirect, the injury must extend to and
impair the statutory body part itself to implicate section 408.161. Muro, 347 S.W.3d at
276.

Submission in single question. The submission of total incapacity and producing
cause in a single question has been approved. Consolidated Underwriters v. Whittaker,
413 S.W.2d 709, 714-15 (Tex. App.— Tyler 1967, writ ref'd n.re.). Submission of
total loss of use and producing cause in one question should also be proper.

344

WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS PJC 25.2

PJC 25.2 Producing Cause of Total Loss of Use of Two Members—
Question

PJC 25.2A Producing Cause of Total Loss of Use of Two Members—
Question—When Claimant Appeals

QUESTION

Is the compensable injury a producing cause of any total loss of use of Paul
Payne's [insert first applicable body part]?

[Insert PJC 25.14 definitions of "producing cause" and "total loss of use. "]

Answer “Yes” or “No.”

Answer:

QUESTION

Is the compensable injury a producing cause of any total loss of use of Paul
Payne's [insert second applicable body part]?

[Insert PJC 25.14 definitions of "producing cause" and "total loss of use. "]

Answer “Yes” or “No.”

Answer:

PJC 25.2B Producing Cause of Total Loss of Use of Two Members—
Question—When Carrier Appeals

QUESTION

Is the compensable injury not a producing cause of any total loss of use of
Paul Payne's [insert first applicable body part]?

[Insert PJC 25.14 definitions of "producing cause" and "total loss of use. "]

Answer “Yes” or “No.”

Answer:

345

PJC 25.2 WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS

QUESTION

Is the compensable injury not a producing cause of any total loss of use of
Paul Payne's [insert second applicable body part]?

[Insert PJC 25.14 definitions of "producing cause” and "total loss of use. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 25.2 should be used in a lifetime income benefits case when
the existence of an injury described in Tex. Lab. Code § 408.161(a)(2)-(5) is not in
dispute but there is a question whether such an injury was a producing cause of a total
loss of use of the member. The question should track the statutory language depending
on whether the injury results in total loss of use of both hands at or above the wrist,
both feet at or above the ankle, or one hand at or above the wrist and one foot at or
above the ankle. See Tex. Lab. Code § 408.161(a)(2)-(4).

Limitation on trial court's jurisdiction. The court's jurisdiction is limited to the
issues decided by the appeals panel and on which judicial review has been sought.
Tex. Lab. Code § 410.302(b). Accordingly, the trial court possesses jurisdiction over
and should submit questions regarding only the extent-of-injury issues that were
decided by the DWC and that have been appealed by an aggrieved party. See Texas
Mutual Insurance Co. v. Ruttiger, 381 S.W.3d 430, 436-37 (Tex. 2012).

Combined submission. When the dispute is not whether total loss of use exists to
both members but rather whether the injury was a producing cause of such loss of use,
the following question may be submitted:

Is the compensable injury a producing cause of any total loss of
use of Paul Payne's [insert first applicable body part| and Paul
Payne's [insert second applicable body part]?

The question should track the statutory language as noted in the comment above enti-
tled “When to use." See Tex. Lab. Code § 408.161(a)(2)-(4).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Producing cause. Regarding the definition of “producing cause," see PJC 23.10.

Totalloss of use. Regarding the definition of "total loss of use," see PJC 25.1.

346

WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS PJC 25.3

PJC 25.3 Duration of Total Loss of Use—Question

If you answered “Yes” to Question [25.24], then answer the following ques-
tion. Otherwise, do not answer the following question.

QUESTION

What is the duration of such total loss of use?
[first body part] [second body part]
Beginning date:

Ending date or “Permanent”:

COMMENT

When to use. PJC 25.3 should be used if there is a dispute about the beginning
date or the permanence of an injury found to have produced a total loss of use of any
of the members enumerated in Tex. Lab. Code § 408.161(a)(2)-(5). If the evidence
indicates a different beginning or ending date for each member alleged to have
resulted in total loss of use, separate questions should be posed for each such member.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question and instructions. Tex. Lab. Code § 408.161(a)(2)-(5) refers
to the loss of certain enumerated members. Such losses, by their nature, are perma-
nent. Tex. Lab. Code § 408.161(b) provides that the total and permanent loss of use of
a body part is the loss of that body part. Thus, a claim for lifetime income benefits
under a total loss of use theory requires a finding (or conclusive evidence) that any
such total loss of use be permanent. Region XIX Service Center v. Banda, 343 S.W.3d
480, 485 (Tex. App.—El Paso 2011, pet. denied).

The Code states that “[a]n employee is entitled to timely and accurate income bene-
fits as provided by this chapter" and further requires that income benefits be paid
weekly without action by the commissioner. Tex. Lab. Code § 408.081(a), (b). Life-
time income benefits are to be paid when the permanent loss of use of certain body
parts occurs. Tex. Lab. Code 8 408.161. Thus, when viewed in context, the statute
requires that carriers begin paying benefits to employees once eligibility is established.
There is no restriction on when such eligibility may be established. Rather, the statute
contemplates that whenever a compensable injury leads to a qualifying permanent loss
of use, eligibility occurs and the employee becomes entitled to permanent lifetime
income benefits. Tex. Lab. Code § 408.161(a); Liberty Mutual Insurance Co. v.
Adcock, 412 S.W.3d 492 (Tex. 2013). See also Mid-Century Insurance Co. v. Texas

347

PJC 25.3 WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS

Workers’ Compensation Commission, 187 S.W.3d 754, 759 (Tex. App.—Austin 2006,
no pet.), in which the court stated:

The legislature specifically reserved [lifetime income benefits] for seven
enumerated categories of injurious conditions that include both immedi-
ately qualifying injuries and those evolving or deteriorating over time. It

further provided that LIBs are payable “for” those conditions . . . [and]
become payable if and when an employee becomes eligible to receive them
. .. . Once an employee is adjudicated eligible to receive LIBs, . . . LIBs

should be paid retroactively to the date the employee first became eligible.
Mid-Century Insurance Co., 187 S.W.3d at 759.

348

WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS PJC 25.4

PJC 25.4 Total and Permanent Loss of Vision—Question

PJC 25.4A Total and Permanent Loss of Vision—Question—When
Claimant Appeals

QUESTION

Did Paul Payne suffer an injury that is a producing cause of the total loss of
sight in both eyes?

[Insert PJC 25.14 definitions of "producing cause" and "total loss of use. "]

Answer “Yes” or “No.”

Answer:

PJC 25.4B Total and Permanent Loss of Vision—Question—When
Carrier Appeals

QUESTION

Did Paul Payne not suffer an injury that is a producing cause of the total loss
of sight in both eyes?

[Insert PJC 25.14 definitions of "producing cause" and "total loss of use. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 25.4 should be used if there is a dispute about the nature or
extent of a bilateral eye injury. See Tex. Lab. Code § 408.161(a)(1). If there is a dis-
pute about the existence of an injury to the worker’s eyes, PJC 25.4 should be adjusted
to determine whether such an injury exists. See Dallas National Insurance Co. v. De
La Cruz, 470 S.W.3d 56, 58 (Tex. 2015); Insurance Co. of State of Pennsylvania v.
Muro, 347 S.W.3d 268 (Tex. 2011).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

349

PJC 25.4 WORKERS? COMPENSATION—LIFETIME INCOME BENEFITS

Duration of total loss of sight. If the evidence does not conclusively establish the
beginning date or duration of loss of sight, PJC 25.4 should be modified to obtain such
findings.

Submission in single question. The submission of total incapacity and producing
cause in a single question has been approved. Consolidated Underwriters v. Whittaker,
413 S.W.2d 709, 714-15 (Tex. App.— Tyler 1967, writ ref'd n.re.). Submission of
injury and producing cause in one question should also be proper.

350

WORKERS’ COMPENSATION— LIFETIME INCOME BENEFITS PJC 25.5

PJC 25.5 Spinal Injury Resulting in Paralysis—Question

PJC 25.5A Spinal Injury Resulting in Paralysis—Question—When
Claimant Appeals

QUESTION

Did Paul Payne suffer an injury to the spine that is a producing cause of per-
manent and complete paralysis of his [insert first applicable body part]?

[Insert PJC 25.1A definition of “producing cause. "]

Answer “Yes” or “No.”

Answer:

QUESTION

Did Paul Payne suffer an injury to the spine that is a producing cause of per-
manent and complete paralysis of his [insert second applicable body part]?

[Insert PJC 25.1A definition of “producing cause. "]

Answer “Yes” or “No.”

Answer:

PJC 25.5B Spinal Injury Resulting in Paralysis—Question—When
Carrier Appeals

QUESTION

Did Paul Payne not suffer an injury to the spine that is a producing cause of
permanent and complete paralysis of his [insert first applicable body part]?

[Insert PJC 25.1A definition of “producing cause. "]

Answer “Yes” or “No.”

Answer:

351

PJC 25.5 WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS

QUESTION

Did Paul Payne not suffer an injury to the spine that is a producing cause of
permanent and complete paralysis of his [insert second applicable body part]?

[Insert PJC 25.14 definition of "producing cause. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 25.5 should be used if there is a dispute about the existence,
nature, or extent of an injury to the spine that results in permanent and complete paral-
ysis of both arms, both legs, or one arm and one leg. The questions should track the
statutory language depending on whether the injury results in paralysis of both arms,
both legs, or one arm and one leg. See Tex. Lab. Code § 408.161(a)(5).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Beginning date of permanent and complete paralysis. If the evidence does not
conclusively establish the beginning date of permanent and complete paralysis, PJC
25.5 should be modified to obtain such findings.

Submission in single question. The submission of total incapacity and producing
cause in a single question has been approved. Consolidated Underwriters v. Whittaker,
413 S.W.2d 709, 714-15 (Tex. App.— Tyler 1967, writ ref'd n.re.). Submission of
injury and producing cause in one question should also be proper.

352

WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS PJC 25.6

PJC 25.6 Incurable Insanity or Imbecility—Question

PJC 25.6A Incurable Insanity or Imbecility—Question—When
Claimant Appeals

QUESTION

Did Paul Payne suffer a physically traumatic injury to the brain that is a pro-
ducing cause of incurable insanity or imbecility?

[Insert PJC 25.1A definition of “producing cause. "]

Answer “Yes” or “No.”

Answer:

PJC 25.6B Incurable Insanity or Imbecility—Question—When
Carrier Appeals

QUESTION

Did Paul Payne not suffer a physically traumatic injury to the brain that is a
producing cause of incurable insanity or imbecility?

[Insert PJC 25.1A definition of “producing cause. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 25.6 should be used if there is a dispute about the existence,
nature, or extent of a physically traumatic injury to the brain that results in incurable
insanity or imbecility. See Tex. Lab. Code § 408.161(a)(6).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Beginning date of incurable insanity or imbecility. If the evidence does not
conclusively establish the beginning date of incurable insanity or imbecility, PJC 25.6
should be modified to obtain such findings.

353

PJC 25.6 WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS

Submission in single question. The submission of total incapacity and producing
cause in a single question has been approved. Consolidated Underwriters v. Whittaker,
413 S.W.2d 709, 714-15 (Tex. App.— Tyler 1967, writ ref'd n.re.). Submission of
injury and producing cause in one question should also be proper.

354

WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS PJC 25.7

PJC 25.7 Burns to the Body—Question
PJC 25.7A Burns to the Body—Question—When Claimant Appeals

QUESTION

Did Paul Payne suffer an injury that is a producing cause of third-degree
burns that cover at least 40 percent of his body and require grafting?

[Insert PJC 25.14 definition of "producing cause. "]

Answer “Yes” or “No.”

Answer:

PJC 25.7B Burns to the Body—Question—When Carrier Appeals

QUESTION

Did Paul Payne not suffer an injury that is a producing cause of third-degree
burns that cover at least 40 percent of his body and require grafting?

[Insert PJC 25.1A definition of "producing cause. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 25.7 should be used if there is a dispute about the existence,
nature, or extent of an injury that results in third-degree burns that cover at least 40
percent of the claimant’s body and require grafting or third-degree burns covering the
majority of either both hands or one hand and the face. The question should track the
statutory language. See Tex. Lab. Code § 408.161(a)(7).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Beginning date of the requisite burns. If the evidence does not conclusively
establish the beginning date of the requisite burns, PJC 25.7 should be modified to
obtain such findings.

Submission in single question. The submission of total incapacity and producing
cause in a single question has been approved. Consolidated Underwriters v. Whittaker,

355

PJC 25.7 WORKERS’ COMPENSATION—LIFETIME INCOME BENEFITS

413 S.W.2d 709, 714-15 (Tex. App.— Tyler 1967, writ ref'd n.re.). Submission of
injury and producing cause in one question should also be proper.

356

CHAPTER 26

PJC 26.1

PJC 26.1A

PJC 26.1B

PJC 26.2

PJC 26.2A

PJC 26.2B

PJC 26.3

PJC 26.3A

PJC 26.3B

PJC 26.4

PJC 26.4A

PJC 26.4B

PJC 26.5

PJC 26.5A

PJC 26.5B

WORKERS’ COMPENSATION—DEATH BENEFITS

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Death—Question ........ 0.0 ccc cence eens

Death—Injury in Course and Scope of Employment
Producing Death—Question—When Claimant Appeals.....

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Producing Death—Question—When Carrier Appeals ......

Death—Eligible Spouse—Question ..............0002 ee eee

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Appeals dh td Sh ab add a, ad tad da ab dus ded Ren des

Death—Eligible Spouse—Question—When Carrier
Appeals cert ter eter e adeeb hare td dos nds aoe

Death—Eligible Child—Question ...............0002 0-0

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Appeals ee eee erred e ERAS

Death—Eligible Child—Question—When Carrier Appeals. .

Death—Eligible Grandchild—Question..................4.

Death—Eligible Grandchild—Question— When Claimant
Appeals 42-ee terere ete eer redes

Death—Eligible Grandchild—Question—When Carrier
Appeals «cereo REESE ea abe bee heehee EN RR NR

Death—Eligible Parent—Question................0220-005

Death—Eligible Parent—Question—When Claimant
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Death—Eligible Parent—Question—W hen Carrier
Appeals seis eer ERE eben aren er Re reni ice erdt

365

357

WORKERS’ COMPENSATION— DEATH BENEFITS PJC 26.1

PJC 26.1 Death—Injury in Course and Scope of Employment
Producing Death—Question

PJC 26.1A Death—Injury in Course and Scope of Employment
Producing Death—Question—When Claimant Appeals

QUESTION

Did Paul Payne in the course and scope of his employment on January 1,
2012, receive an injury that was a producing cause of his death?

"Injury" means damage or harm to the physical structure of the body and
such diseases or infections as naturally result from such damage or harm.

"Injury" also includes any incitement, acceleration, or aggravation of any
disease, infirmity, or condition, previously or subsequently existing, by reason
of such damage or harm.

"Injury" also includes any damage or harm arising out of the medical or sur-
gical treatment instituted to cure or relieve the effects of the injury.

"Injury" also includes any mental or nervous disorder that impairs the use or
control of the physical structure of the body.

"Injury in the course and scope of employment" means any injury suffered
while engaged in an activity of any kind or character that has to do with and
originates in the work, business, trade, or profession of the employer, and that
is performed by an employee while engaged in or about the furtherance of the
affairs or business of his employer, whether on the employer's premises or
elsewhere.

"Producing cause" means a cause from an injury or condition that is a sub-
stantial factor in bringing about death, and without which the death would not
have occurred. There may be more than one producing cause.

Answer “Yes” or “No.”

Answer:

359

PJC 26.1 WORKERS? COMPENSATION—DEATH BENEFITS

PJC 26.1B Death—Injury in Course and Scope of Employment
Producing Death—Question—When Carrier Appeals

QUESTION

Did Paul Payne in the course and scope of his employment on January 1,
2012, not receive an injury that was a producing cause of his death?

[Insert PJC 26.14 definitions of “injury” and "producing cause. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 26.1 may be submitted when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
involving a dispute over whether a compensable injury has resulted in the injured
employee's death. This question submits several elements in one inquiry as provided
for in Tex. R. Civ. P. 277. Any elements of the question or definitions not in issue
should be omitted.

If the injury 1s not partly physical but instead solely mental, then in addition to the
definition covering mental or nervous disorder the following definition should be sub-
mitted:

"Physical structure of the body" means the entire body and mind
functioning together.

See GTE Southwest v. Bruce, 998 S.W.2d 605 (Tex. 1999); Bailey v. American General
Insurance Co., 279 S.W.2d 315, 319 (Tex. 1955). Moreover, if the mental or nervous
disorder is not accompanied by or does not follow a physical injury, then (in order to
avoid the noncompensability of an occupational disease caused by repetitive mental
traumatic activities) the following additional question should be submitted:

Did the injury result from an undesigned, unexpected event that
was traceable to a definite time, place, and cause?

See GTE Southwest, 998 S.W.2d at 609-11; Transportation Insurance Co. v. Maksyn,
580 S.W.2d 334, 338 (Tex. 1979).

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

360

WORKERS’ COMPENSATION— DEATH BENEFITS PJC 26.1

Source of question. The question is based on Tex. Lab. Code §§ 406.031,
401.011(12).

Source of definitions. For the definition of “producing cause," see PJC 23.10.
For the definitions of “injury” and “injury in the course and scope of employment,"
see PJC 17.1.

Course and scope of employment. To be compensable, the injury resulting in
death must be in the course and scope of employment. If there is a question whether
the deceased was an employee, an appropriate question should be submitted. See
chapter 16 in this volume.

Evidence of more than one injury. If there is evidence of more than one injury,
the date of the injury inquired about should be included in the question.

Date of injury. If there is a question about the exact date of injury, the words “or
about” should be inserted after the word “on” in the question.

361

PJC 26.2 WORKERS? COMPENSATION—DEATH BENEFITS

PJC 26.2 Death—Eligible Spouse—Question

PJC 26.2A Death—Eligible Spouse—Question—When Claimant
Appeals

QUESTION

Was Mary Payne an eligible spouse of Paul Payne at the time of Paul
Payne’s death?

“Eligible spouse” means the surviving spouse of a deceased employee unless
the spouse abandoned the employee for longer than the year immediately pre-
ceding the death without good cause.

“Abandonment” occurs if one spouse voluntarily leaves the bed and board of
the other spouse with the intention not to return and live as husband and wife
and perform his or her marital obligations toward the other spouse.

An “eligible spouse” includes a party to an informal marriage.

An “informal marriage” is established by evidence that a man and woman
agreed to be married and after the agreement they lived together in Texas as
husband and wife and there represented to others that they were married.

Answer “Yes” or “No.”

Answer:

PJC 26.2B Death—Eligible Spouse—Question—When Carrier
Appeals

QUESTION

Was Mary Payne not an eligible spouse of Paul Payne at the time of Paul
Payne’s death?

[Insert PJC 26.2A definitions of “eligible spouse,” “abandonment,”
and “informal marriage. "]

Answer “Yes” or “No.”

Answer:

362

WORKERS’ COMPENSATION— DEATH BENEFITS PJC 26.2

COMMENT

When to use. PJC 26.2 may be submitted when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
involving a dispute over whether a party to the proceedings is an eligible spouse. An
eligible spouse includes a party to an informal marriage. See Tex. Fam. Code
§ 2.401(2). If the evidence raises a fact question regarding the existence of an informal
marriage, the definition regarding informal marriage should be included. Any element
of the definitions not in issue should be omitted.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question. PJC 26.2 is based on Tex. Lab. Code § 408.182.

Source of definitions. See Tex. Lab. Code § 408.182; Tex. Fam. Code § 2.401;
Foreman v. Security Insurance Co. of Hartford, 15 S.W.3d 214, 215-16 (Tex. App.—
Texarkana 2000, no pet.). See also Jackson v. Jackson, 470 S.W.2d 276, 279 (Tex.
App.—Fort Worth 1971, writ ref' d n.r.e.), regarding abandonment.

363

PJC 26.3 WORKERS’ COMPENSATION—DEATH BENEFITS

PJC 26.3 Death—Eligible Child—Question

PJC 26.3A Death—Eligible Child—Question—When Claimant
Appeals

QUESTION

Was Paul Payne, Jr. an eligible child of Paul Payne at the time of Paul
Payne’s death?

“Eligible child” means a child of the deceased employee if the child is—
1. aminor;

2. enrolled as a full-time student in an accredited educational institu-
tion and is less than twenty-five years of age; or

3. adependent of the deceased employee at the time of the employee's
death.

An "eligible child" includes an adoptive child and a dependent stepchild.

A "dependent" of the deceased employee is an individual who receives a
regular or recurring economic benefit that contributes substantially to the indi-
vidual's welfare and livelihood.

If an economic benefit was provided in the form of goods and services, the
value shall be the market value of the same or similar goods and services in the
same vicinity.

“Full-time student” means a person enrolled in at least the minimum course
load required to qualify as full-time at the particular educational institution and
in the particular course of study.

" Accredited educational institution" means an institution that provides a rec-
ognized course or courses of instruction and leads to the conference of a
diploma, degree, or other recognized certification of completion at the conclu-
sion of the course of study. An accredited educational institution includes, but
is not limited to, a high school, a college or university, and a trade school.

Answer “Yes” or “No.”

Answer:

364

WORKERS’ COMPENSATION— DEATH BENEFITS PJC 26.3

PJC 26.3B Death—Eligible Child—Question—When Carrier
Appeals

QUESTION

Was Paul Payne, Jr. not an eligible child of Paul Payne at the time of Paul
Payne's death?

[Insert PJC 26.34 definitions of “eligible child,” "dependent," "full-time
student,” and "accredited educational institution. ”]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 26.3 may be submitted when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
involving a dispute over whether a party to the proceedings is an eligible child. Any
element of the definitions not in issue should be omitted.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question. PJC 26.3 is based on Tex. Lab. Code § 408.182.

Source of definitions. See Tex. Lab. Code §§ 408.182, 401.011(14); 28 Tex.
Admin. Code §§ 132.2, 132.4, 132.15.

365

PJC 26.4 WORKERS? COMPENSATION—DEATH BENEFITS

PJC 26.4 Death—Eligible Grandchild—Question

PJC 26.44 Death—Eligible Grandchild—Question—When
Claimant Appeals

QUESTION
Was Charlie Payne an eligible grandchild of Paul Payne at the time of Paul
Payne's death?

"Eligible grandchild" means a grandchild of the deceased employee who is a
dependent of the deceased employee and whose parent is not an eligible child.

A “dependent” of the deceased employee is an individual who receives a
regular or recurring economic benefit that contributes substantially to the indi-
vidual's welfare and livelihood.

If an economic benefit was provided in the form of goods and services, the
value shall be the market value of the same or similar goods and services in the
same vicinity.

Answer “Yes” or “No.”

Answer:

PJC 26.4B Death—Eligible Grandchild—Question—When Carrier
Appeals

QUESTION

Was Charlie Payne not an eligible grandchild of Paul Payne at the time of
Paul Payne's death?

[Insert PJC 26.4 definitions of “eligible grandchild” and "dependent. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 26.4 may be submitted when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)

366

WORKERS’ COMPENSATION— DEATH BENEFITS PJC 26.4

involving a dispute over whether a party to the proceedings is an eligible grandchild.
Any element of the definitions not in issue should be omitted.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question. PJC 26.4 is based on Tex. Lab. Code § 408.182.

Source of definitions. See Tex. Lab. Code §§ 408.182, 401.011(14); 28 Tex.
Admin. Code 88 132.2, 132.5.

Eligible siblings or grandparents. If there is no eligible spouse and there are no
eligible children or grandchildren, the death benefits shall be paid in equal shares to
surviving dependents of the deceased employee who are parents, stepparents, siblings,
or grandparents of the deceased. Tex. Lab. Code § 408.182. PJC 26.4 may be modified
for such cases accordingly.

367

PJC 26.5 WORKERS? COMPENSATION—DEATH BENEFITS

PJC 26.5 Death— Eligible Parent—Question

PJC 26.5A Death—Eligible Parent—Question—When Claimant
Appeals

QUESTION 1
Was Frank Payne an eligible parent of Paul Payne at the time of Paul
Payne's death?

“Eligible parent" means the mother or father of a deceased employee,
including an adoptive parent or a stepparent. The term does not include a parent
whose parental rights have been terminated.

Answer “Yes” or “No.”

Answer:

If you answered “Yes” to Question 1, then answer Question 2. Otherwise, do
not answer Question 2.

QUESTION 2
Was Frank Payne a dependent of Paul Payne at the time of Paul Payne's
death?

A “dependent” of the deceased employee is an individual who receives a
regular or recurring economic benefit that contributes substantially to the indi-
vidual's welfare and livelihood.

If an economic benefit was provided in the form of goods and services, the
value shall be the market value of the same or similar goods and services in the
same vicinity.

Answer “Yes” or “No.”

Answer:

PJC 26.5B Death—Eligible Parent—Question—When Carrier
Appeals

QUESTION

Was Frank Payne not an eligible parent of Paul Payne at the time of Paul
Payne’s death?

368

WORKERS’ COMPENSATION— DEATH BENEFITS PJC 26.5

[Insert PJC 26.54 definition of "eligible parent. "]

Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 26.5 may be submitted when a party appeals a decision of the
Division of Workers’ Compensation of the Texas Department of Insurance (DWC)
involving a dispute over whether a party to the proceedings is an eligible parent. An
eligible parent who is not dependent on the decedent on the date of the decedent’s
death is entitled to receive death benefits, but in a reduced amount. Question 2 of PJC
26.5 should be conditionally submitted when this issue is presented. Any element of
the definitions not in issue should be omitted.

Burden of proof. The burden of proof should be placed appropriately in accor-
dance with the decision of the appeals panel. See PJC 15.1.

Source of question. PJC 26.5 is based on Tex. Lab. Code § 408.182.

Source of definitions. See Tex. Lab. Code §§ 408.182, 401.011(14); 28 Tex.
Admin. Code §§ 132.2, 132.6.

Caveat: nondependent parents. Tex. Lab. Code § 408.182(d-1) allows nonde-
pendent parents to recover death benefits not to exceed 104 weeks if there is no eligi-
ble spouse, no eligible child, no eligible grandchildren, and there are no surviving
dependents of the deceased employee who are parents, siblings, or grandparents of the
deceased.

369

CHAPTER 27

PIC 27.1

WORKERS' COMPENSATION—ATTORNEY'S FEES

Claimant's Attorney's Fees—Question..............000200-

371

WORKERS’ COMPENSATION—ATTORNEY’S FEES PJC 27.1

PJC 27.1 Claimant’s Attorney’s Fees—Question

QUESTION

Find the reasonable and necessary attorney’s fees incurred by Paul Payne as
a result of the insurance carrier’s appeal from the decision of the Texas Depart-
ment of Insurance, Division of Workers’ Compensation.

1. For representation in the trial court:

Answer:

2. For representation through appeal to the court of appeals:

Answer:

3. For representation at the petition for review stage in the Supreme
Court of Texas:

Answer:

4. For representation at the merits briefing stage in the Supreme Court
of Texas:

Answer:

5. For representation through oral argument and the completion of
proceedings in the Supreme Court of Texas:

Answer:

COMMENT

When to use. PJC 27.1 should be used if the insurance carrier sought judicial
review of a final decision of the appeals panel regarding compensability or eligibility
for, or the amount of, income or death benefits and the claimant offers evidence of the
reasonableness and necessity of such fees. Only the applicable elements should be
submitted.

Burden of proof. The burden of proof should be placed on the plaintiff. See Tex.
Lab. Code § 408.221; Transcontinental Insurance Co. v. Crump, 330 S.W.3d 211,
231-32 (Tex. 2010).

Source of question and instruction. PJC 27.1 is based on Tex. Lab. Code
§ 408.221 and Crump, 330 S.W.3d at 231-32. In Crump, the court held that a carrier is
entitled to submit the disputed issue of the reasonableness and necessity of a claim-

373

PJC 27.1 WORKERS? COMPENSATION—ATTORNEY'S FEES

ant's attorney's fees to a jury, which will consider the factors contained in Tex. Lab.
Code 8 408.221(d). If the claimant prevails only on some issues, after the verdict is
announced the court will apportion the fees according to the factors in subsection (d)
and will award reasonable and necessary attorney's fees to the claimant’s attorney only
for those issues on which the claimant prevails. Crump, 330 S.W.3d at 231. If the
claimant totally prevails, the verdict as to the amount for which the carrier is liable is
then subject only to the court's approval based on the factors in subsection (d). Crump,
330 S.W.3d at 231. Regardless of whether the claimant partially or totally prevails, the
jury's verdict as to the fee amount “must be approved by the . . . court.” Crump, 330
S.W.3d at 232 (citing Tex. Lab. Code § 408.221(a)). When a claimant pays his attor-
ney's fees out of his benefits recovery, the amount approved by the court is solely
within its discretion based on the attorney's time and expenses according to written
evidence presented to the court and according to subsection (d)'s factors. Crump, 330
S.W.3d at 232.

Factors to consider. Tex. Lab. Code § 408.221(d) states that in approving an
attorney's fee seven factors should be considered. In an appropriate case, the following
instruction may be used, but only the factors that are relevant in the particular case
should be included:

Factors to consider in determining a reasonable fee include—
1. the time and labor required;
2. the novelty and difficulty of the questions involved;
3. the skill required to perform the legal services properly;

4. the fee customarily charged in the locality for similar legal
services;

5. the amount involved in the controversy;

6. the benefits to the claimant that the attorney is responsible
for securing; and

7. the experience and ability of the attorney performing the
services.

Stages of representation. Depending on the evidence in a particular case, the
court may submit a different number of elements and change the descriptions of the
stages of representation.

Conditional appellate fees. Any prospective award of appellate attorney's fees
may be conditionally determined by the trial court. Old Republic Insurance Co. v.
Warren, 33 S.W.3d 428, 435 (Tex. App.—Fort Worth 2000, pet. denied).

374

CHAPTER 28

PJC 28.1

PIC. 28.2

PJC 28.3

PJC 28.4

PJC 28.5

PJC 28.6

PJC 28.7

PJC 28.8

PJC 28.8A

PJC 28.8B

PJC 28.8C

PJC 28.9

PJC 28.10

PJC 28.11

PERSONAL INJURY DAMAGES

Personal Injury Damages—Instruction Conditioning
Damages Questions on Liability................0 00.0 ee eee 377

Personal Injury Damages—Instruction on Whether

Compensatory Damages Are Subject to Income Taxes ........ 378
Personal Injury Damages—Basic Question ................. 379
Personal Injury Damages—Injury of Spouse ................ 385
Personal Injury Damages—Injury of Minor Child............ 388
Personal Injury Damages—Parents’ Loss of Services of

Minor Child iei »PEQNRÜSNREC MPESM PRESE ERPEPPES 392
Personal Injury Damages—Exemplary Damages ............ 394

Personal Injury Damages—Instruction in Cases Involving
Preexisting Injury or Condition. ........... llle nenna 397

Personal Injury Damages—Instruction in Cases Involving
Preexisting Injury or Condition—No Aggravation of

Preexisting Symptomatic Injury or Condition and No

Eggshell Plaintiff... 0.0.0... eee eee eee 397

Personal Injury Damages—Instruction in Cases Involving
Preexisting Injury or Condition—A ggravation of
Symptomatic Preexisting Injury or Condition ............. 397

Personal Injury Damages—Instruction in Cases Involving

Preexisting Injury or Condition—Asymptomatic Preexisting
Injury or Condition—Eggshell Plaintiff.................. 397

Personal Injury Damages—Exclusionary Instruction for
Failure to Mitigate... 6... eee 400

Personal Injury Damages—Child’s Loss of Consortium—
Question about Parent’s Injury .......... 0.0.0 cee cee 402

Personal Injury Damages—Child’s Loss of Consortium—
Damages Question. ......... 0.0 eee e eects 403

375

PERSONAL INJURY DAMAGES PJC 28.1

PJC 28.1 Personal Injury Damages—Instruction Conditioning
Damages Questions on Liability

Answer Question [the damages question] if you answered “Yes” for
Don Davis to Question [the liability question] and answered:

1. “No” for Paul Payne to Question [the liability question], or

2. 50 percent or less for Paul Payne to Question [the percent-
age causation question].

Otherwise, do not answer Question [the damages question].

COMMENT

When to use. PJC 28.1 may be used to condition answers to personal injury dam-
ages questions on a finding of liability as permitted by Tex. R. Civ. P. 277. See H.E.
Butt Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998).

Multiple plaintiffs. For multiple plaintiffs, the instruction should precede the
cluster of damages questions for each plaintiff.

Multiple defendants. For multiple defendants, Don Davis should be replaced
with any of the defendants.

377

PJC 28.2 PERSONAL INJURY DAMAGES

PJC 28.2 Personal Injury Damages—Instruction on Whether
Compensatory Damages Are Subject to Income Taxes

You are instructed that any monetary recovery for [/ist each element of eco-
nomic or noneconomic damages that is subject to taxation] is subject to [fed-
eral or state] income taxes. Any recovery for [/ist each element of economic or
noneconomic damages that is not subject to taxation] 1s not subject to [federal
or state] income taxes.

COMMENT

When to use. PJC 28.2 should be submitted with the damages question in which
a claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contri-
butions of a pecuniary value, or loss of inheritance. Whether an element of damages is
taxable depends on the substantive tax law pertaining to each cause of action.

Source of instruction. See Tex. Civ. Prac. & Rem. Code § 18.091(b).

378

PERSONAL INJURY DAMAGES PJC 28.3

PJC 28.3 Personal Injury Damages— Basic Question

QUESTION

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne for his injuries, if any, that resulted from the occurrence in
question?

Answer separately, in dollars and cents, for damages, if any. Do not reduce
the amounts, if any, in your answers because of the negligence, if any, of Paul
Payne. Any recovery will be determined by the court when it applies the law to
your answers at the time of judgment.

1. Physical pain and mental anguish sustained in the past.

Answer:

2. Physical pain and mental anguish that, in reasonable probability,
Paul Payne will sustain in the future.

Answer:

3. Loss of earning capacity sustained in the past.

Answer:

4. Loss of earning capacity that, in reasonable probability, Paul Payne
will sustain in the future.

Answer:

5. Disfigurement sustained in the past.

Answer:

6. Disfigurement that, in reasonable probability, Paul Payne will sus-
tain in the future.

Answer:

379

PJC 28.3 PERSONAL INJURY DAMAGES

7. Physical impairment sustained in the past.

Answer:

8. Physical impairment that, in reasonable probability, Paul Payne
will sustain in the future.

Answer:

9. Medical care expenses incurred in the past.

Answer:

10. Medical care expenses that, in reasonable probability, Paul Payne
will incur in the future.

Answer:

COMMENT

When to use. PJC 28.3 is the basic general damages question to be used in the
usual personal injury case. The above question separately submits past and future
damages. See Tex. Fin. Code § 304.1045. The “do not compensate twice” instruction
is adapted from Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex.
2003).

Separate answer for each element. For actions filed on or after September 1,
2003, the Code requires economic damages to be determined “separately from the
amount of other compensatory damages.” Tex. Civ. Prac. & Rem. Code § 41.008(a).
Also, separate submission of elements may be called for in the following instances.

Insufficient evidence. Broad-form submission of multiple elements of damages
may lead to harmful error if there is a proper objection raising insufficiency of the evi-
dence to support one or more of the elements submitted. Harris County v. Smith, 96
S.W.3d 230 (Tex. 2002). If there is any question about the sufficiency of the evidence
to support one or more of the elements, the Committee recommends that the elements
of damages be separately submitted to the jury as above.

Community property. Separate answers may also be required if someone other
than the injured party is entitled to part of the recovery. For example, certain elements
of personal injury damages are community property. Tex. Fam. Code § 3.001(3); see
also Graham v. Franco, 488 S.W.2d 390 (Tex. 1972).

Exemplary damages. For actions filed before September 1, 2003, see the 2018
edition of this volume for an explanation of the earlier law.

380

PERSONAL INJURY DAMAGES PJC 28.3

Broad-form submission of elements. Where separate answers are not required,
the following broad-form submission may be appropriate.

QUESTION

What sum of money, if paid now in cash, would fairly and reason-
ably compensate Paul Payne for his injuries, if any, that resulted
from the occurrence in question?

Consider the elements of damages listed below and none other.
Consider each element separately. Do not award any sum of money
on any element if you have otherwise, under some other element,
awarded a sum of money for the same loss. That is, do not compen-
sate twice for the same loss, if any. Do not include interest on any
amount of damages you find.

1. Physical pain and mental anguish.
2. Loss of earning capacity.

3. Disfigurement.

4. Physical impairment.

5. Medical care expenses.

Do not reduce the amounts, if any, in your answers because of the
negligence, if any, of Paul Payne. Any recovery will be determined
by the court when it applies the law to your answers at the time of
judgment.

Answer in dollars and cents for damages, if any, that—
were sustained in the past;

Answer:

in reasonable probability will be sustained in the future.

Answer:

One element only. Only those elements for which evidence is introduced should
be submitted. If only one element is submitted, the question should read—

What sum of money, if paid now in cash, would fairly and reason-
ably compensate Paul Payne for medical care expenses, if any,
resulting from the occurrence in question?

The phrase medical care expenses may be replaced by any applicable element.

381

PJC 28.3 PERSONAL INJURY DAMAGES

No evidence of physical pain. If there is no evidence of physical pain but there is
evidence of compensable mental anguish, element 1 should submit only “mental
anguish.” See St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex. 1987), over-
ruled on other grounds by Boyles v. Kerr, 855 S.W.2d 593, 595—96 (Tex. 1993).

Caveat on submitting physical pain and mental anguish together. To avoid
concerns about improperly mixing valid and invalid elements of damages (see Harris
County, 96 S.W.3d at 234), when the sufficiency of the evidence to support either
physical pain or mental anguish is in question, separate submission of those items may
avoid the need for a new trial if a sufficiency challenge is upheld on appeal. See Katy
Springs & Manufacturing, Inc. v. Favalora, 476 S.W.3d 579, 597—99, 610—11 (Tex.
App.—Houston [14th Dist.] 2015, pet. denied) (although challenge to separate sub-
mission was waived, separate awards allowed modification of judgment, rather than
remand for new trial, where evidence of future mental anguish was legally insuffi-
cient). The Texas Supreme Court has yet to decide the issue.

Medical care expenses in actions filed on or after September 1, 2003. For
actions filed on or after September 1, 2003, recovery of medical or health-care
expenses is governed by section 41.0105 of the Texas Civil Practice and Remedies
Code. This statute provides, “In addition to any other limitation under law, recovery of
medical or health care expenses incurred is limited to the amount actually paid or
incurred by or on behalf of the claimant." Tex. Civ. Prac. & Rem. Code § 41.0105. See
also Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011) (interpreting section
41.0105).

Reasonable expenses and necessary medical care. _ If there is a question whether
medical expenses are reasonable or medical care is necessary, the following should be
substituted for elements 9 and 10:

9. Reasonable expenses of necessary medical care incurred in
the past.

Answer:

10. Reasonable expenses of necessary medical care that, in rea-
sonable probability, Paul Payne will incur in the future.

Answer:

Existence of injury. Under Texas & Pacific Railway v. Van Zandt, 317 S.W.2d
528 (Tex. 1958), a separate question was required on the existence of injury if a genu-

382

PERSONAL INJURY DAMAGES PJC 28.3

ine dispute was raised by the evidence. Now, given the preference for broad-form sub-
mission, Lemos v. Montez, 680 S.W.2d 798 (Tex. 1984), the Committee believes that a
separate question is no longer necessary. The issue, if raised, would be subsumed
under the damages question, which includes the phrase “if any.” Further, if there is
doubt whether the injury resulted from the occurrence in question or from another
cause, an exclusionary instruction may be appropriate. See PJC 28.8A (no aggravation
of preexisting symptomatic condition or injury and no eggshell plaintiff), 28.8B
(aggravation of symptomatic preexisting injury or condition), 28.8C (asymptomatic
preexisting injury or condition—eggshell plaintiff), and 28.9 (for failure to mitigate).

Bystander injury. This question may be used to submit a bystander's injury in
appropriate cases. But see Edinburg Hospital Authority v. Trevino, 941 S.W.2d 76
(Tex. 1997).

Physical impairment and lost earning capacity. If both physical impairment
and lost earning capacity are included, the instruction in the second paragraph of the
question will avoid a possible double recovery. See Golden Eagle Archery, Inc., 116
S.W.3d at 770 (quoting French v. Grigsby, 567 S.W.2d 604, 608 (Tex. App.—Beau-
mont), writ ref'd n.re. per curiam, 571 S.W.2d 867 (Tex. 1978)).

Physical impairment and disfigurement. For the difference between physical
impairment and cosmetic disfigurement, see Texas Farm Products v. Leva, 535 S.W.2d
953 (Tex. App.— Tyler 1976, no writ). See also Golden Eagle Archery, Inc., 116
S.W.3d at 772, for a discussion of physical impairment.

Loss of earning capacity. The proper measure of damages in a personal injury
case 1s loss of earning capacity, rather than loss of earnings in the past. Dallas Railway
& Terminal v. Guthrie, 210 S.W.2d 550 (Tex. 1948); TJ. Allen Distributing Co. v.
Leatherwood, 648 S.W.2d 773 (Tex. App.— Beaumont 1983, writ ref'd n.r.e.). How-
ever, loss of earnings has been allowed in some cases. See Home Interiors & Gifts v.
Veliz, 695 S.W.2d 35 (Tex. App.—Corpus Christi-Edinburg 1985, writ ref'd n.r.e.);
Carr v. Galvan, 650 S.W.2d 864 (Tex. App.—San Antonio 1983, writ ref'd n.r.e.). For
loss of earning capacity if the plaintiff is self-employed, see King v. Skelly, 452 S.W.2d
691 (Tex. 1970), and Bonney v. San Antonio Transit Co., 325 S.W.2d 117 (Tex. 1959).

Future medical care. Future medical care is established by evidence that, in all
reasonable probability, such care will be required and by evidence of the reasonable
cost of that care. Whole Foods Market Southwest, L.P. v. Tijerina, 979 S.W.2d 768, 781
(Tex. App.—Houston [14th Dist.] 1998, pet. denied). However, “an award of future
medical expenses, by its very nature, is not a matter of certainty." Gunn v. McCoy, 554
S.W.3d 645, 670 (Tex. 2018); see also Sanmina-SCI Corp. v. Ogburn, 153 S.W.3d
639, 643 (Tex. App.—Dallas 2004, pet. denied) (noting uncertainty of such matters as
life expectancy, medical advances, and future costs of medicines). Accordingly, courts
generally do not require any particular evidence to support future medical expenses—
i.e., future medical expenses can be established through expert medical testimony, but

383

PJC 28.3 PERSONAL INJURY DAMAGES

they may also be established based on evidence of the nature of the injuries incurred
together with the reasonable value of the past medical treatment rendered and the
plaintiff's condition at trial. Tijerina, 979 S.W.2d at 781; see also Finley v. P.G., 428
S.W.3d 229, 233 (Tex. App.—Houston [1st Dist.] 2014, no pet.); National Freight,
Inc. v. Snyder, 191 S.W.3d 416, 426 (Tex. App.—Eastland 2006, no pet.).

Instruction not to reduce amounts because of plaintiff's negligence. If the
plaintiff's negligence is also in question, the exclusionary instruction given in this PJC
immediately before the answer blanks is proper. See Tex. Civ. Prac. & Rem. Code
§ 33.001; Tex. R. Civ. P. 277. This instruction should be omitted if there is no claim of
the plaintiff's negligence. Also, if an exclusionary instruction for failure to mitigate
damages is required, this instruction should be modified. See PJC 28.9.

384

PERSONAL INJURY DAMAGES PJC 28.4

PJC 28.4 Personal Injury Damages—Injury of Spouse

QUESTION

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Mary Payne for injuries, if any, to her husband, Paul Payne, that
resulted from the occurrence in question?

1. Loss of household services sustained in the past.

*Household services" means the performance of household and domes-
tic duties by a spouse to the marriage.

Answer:

2. Loss of household services that, in reasonable probability, Mary
Payne will sustain in the future.

Answer:

3. Loss of consortium sustained in the past.

"Consortium" means the mutual right of the husband and wife to that
affection, solace, comfort, companionship, society, assistance, sexual rela-
tions, emotional support, love, and felicity necessary to a successful mar-
riage.

Answer:

4. Loss of consortium that, in reasonable probability, Mary Payne will
sustain in the future.

Answer:

385

PJC 28.4 PERSONAL INJURY DAMAGES

COMMENT

When to use. PJC 28.4 should be used to submit questions on damages arising
out of injury to a party's spouse. The above question separately submits past and future
damages. See Tex. Fin. Code § 304.1045. The “do not compensate twice" instruction
is adapted from Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex.
2003).

Loss of consortium. A spouse has a cause of action for loss of consortium as a
result of physical injuries caused to the other spouse by the negligence of a third party.
Browning-Ferris Industries, Inc. v. Lieck, 881 S.W.2d 288 (Tex. 1994); Whittlesey v.
Miller, 572 S.W.2d 665 (Tex. 1978); see also Reed Tool Co. v. Copelin, 610 S.W.2d
736 (Tex. 1980). An action for loss of consortium in favor of the deprived spouse
against an intentional tortfeasor-employer of the impaired spouse has been recognized.
Copelin, 610 S.W.2d 736.

Loss of household services. A spouse has a cause of action for loss of services of
the other spouse, which is separate from any cause of action for loss of consortium.
Whittlesey, 572 S.W.2d at 666 & n.2. “Services” generally means the performance by
a spouse of household and domestic duties. Whittlesey, 572 S.W.2d at 666 n.2. These
damages result from a physical injury to the spouse caused by the negligence of a third
party. See, e.g., EDCO Production, Inc. v. Hernandez, 794 S.W.2d 69, 77 (Tex. App.—
San Antonio 1990, writ denied).

Separate property. A recovery for loss of services and loss of consortium is the
separate property of the spouse claiming the loss. Whittlesey, 572 S.W.2d at 669.

Derivative damages subject to reduction because of negligence of injured
spouse. Because a claim for loss of services and consortium is derived from the
injured spouse's claim, the recovery by the noninjured spouse will be reduced by the
percentage of contributory negligence that caused the occurrence attributable to the
injured spouse. See Copelin, 610 S.W.2d at 738—39.

Exemplary damages. For actions filed before September 1, 2003, see the 2018
edition of this volume for an explanation of the earlier law.

386

PERSONAL INJURY DAMAGES PJC 28.4

Broad-form submission of elements. For an example of a broad-form submis-
sion of damages elements, see PJC 28.3 comment, “Broad-form submission of ele-
ments."

Instruction not to reduce amounts because of negligence of injured spouse. If
the negligence of the injured spouse is also in question, the exclusionary instruction
given in this PJC immediately before the answer blanks is proper. See Tex. Civ. Prac.
& Rem. Code § 33.001; Tex. R. Civ. P. 277. This instruction should be omitted if there
is no claim of the injured spouse's negligence. Also, if an exclusionary instruction for
failure to mitigate damages 1s required, this instruction should be modified. See PJC
28.9.

387

PJC 28.5 PERSONAL INJURY DAMAGES

PJC 28.5 Personal Injury Damages—Injury of Minor Child

QUESTION

What sum of money, if paid now in cash, would provide fair and reasonable
compensation for Paul Payne, Jr.’s injuries, if any, that resulted from the occur-
rence in question?

Answer separately, in dollars and cents, for damages, if any. Do not reduce
the amounts, if any, in your answers because of the negligence, if any, of Paul
Payne, Jr. Any recovery will be determined by the court when it applies the law
to your answers at the time of judgment.

1. Physical pain and mental anguish sustained in the past.

Answer:

2. Physical pain and mental anguish that, in reasonable probability,
Paul Payne, Jr. will sustain in the future.

Answer:

3. Loss of earning capacity sustained in the past.

Answer:

4. Loss of earning capacity that, in reasonable probability, will be sus-
tained in the future from the time of trial until Paul Payne, Jr. reaches the
age of eighteen years.

Answer:

5. Loss of earning capacity that, in reasonable probability, will be sus-
tained in the future after Paul Payne, Jr. reaches the age of eighteen years.

Answer:

6. Disfigurement sustained in the past.

Answer:

388

PERSONAL INJURY DAMAGES PJC 28.5

7. Disfigurement that, in reasonable probability, Paul Payne, Jr. will
sustain in the future.

Answer:

8. Physical impairment sustained in the past.

Answer:

9. Physical impairment that, in reasonable probability, Paul Payne, Jr.
will sustain in the future.

Answer:

10. Medical care expenses incurred in the past on behalf of Paul Payne,
Jr.

Answer:

11. Medical care expenses that, in reasonable probability, will be
incurred on behalf of Paul Payne, Jr. in the future from the time of trial until
Paul Payne, Jr. reaches the age of eighteen years.

Answer:

12. Medical care expenses that, in reasonable probability, Paul Payne,
Jr. will incur after he reaches the age of eighteen years.

Answer:

COMMENT

When to use. PJC 28.5 should be used to submit questions on damages arising
out of injuries to a minor child. The above question separately submits past and future
damages. See Tex. Fin. Code § 304.1045. The “do not compensate twice” instruction
is adapted from Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex.
2003).

Notice of change to prior versions. This question differs from prior versions as
well as from most other damages questions in that it does not ask the jury to determine
the amount that would “compensate Paul Payne, Jr. for his injuries, if any.” Because
PJC 28.5 includes elements of damages (e.g., loss of earning capacity and medical
care expenses incurred before the age of majority) that reflect injuries to the minor, but
that are not recoverable by the minor, the Committee felt that a revision was necessary
to remove any reference to the person being compensated. Rather, a more accurate

389

PJC 28.5 PERSONAL INJURY DAMAGES

question, given the potentially differing rights to recovery, is one that asks the jury to
value the injuries themselves without regard to who is to be compensated for those
injuries.

Question assumes child under eighteen. The form of PJC 28.5 assumes the
minor has not reached the age of eighteen years by the time of trial. If he has, elements
4, 5, 11, and 12 must be changed to inquire about (1) damages in the past up to the age
of eighteen, (2) damages from the time the minor reaches the age of eighteen to the
time of trial, and (3) damages from trial into the future.

Caveat on submitting physical pain and mental anguish together. To avoid
concerns about improperly mixing valid and invalid elements of damages (see Harris
County v. Smith, 96 S.W.3d 230, 234 (Tex. 2002)), when the sufficiency of the evi-
dence to support either physical pain or mental anguish is in question, separate sub-
mission of those items may avoid the need for a new trial if a sufficiency challenge is
upheld on appeal. See Katy Springs & Manufacturing, Inc. v. Favalora, 476 S.W.3d
579, 597—99, 610—11 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (although
challenge to separate submission was waived, separate awards allowed modification
of judgment, rather than remand for new trial, where evidence of future mental
anguish was legally insufficient). The Texas Supreme Court has yet to decide the
issue.

Medical expenses, lost earnings recoverable only by parents. Because the right
to recover medical costs incurred on behalf of an unemancipated minor and loss of an
unemancipated minor's earnings belong to the parents or the minor's estate, the ele-
ments of future loss of earning capacity and future medical expenses should be sepa-
rated further to distinguish between those damages incurred before and after the child
reaches the age of eighteen. Tex. Fam. Code § 151.001(5); Sax v. Votteler, 648 S.W.2d
661, 666 (Tex. 1983). See PJC 28.6 for submission of the parents' loss of services of a
minor child. There may be times when the minor may recover medical expenses up to
age eighteen. See Sax, 648 S.W.2d at 666.

390

PERSONAL INJURY DAMAGES PJC 28.5

Insufficient evidence. Broad-form submission of multiple elements of damages
may lead to harmful error if there is a proper objection raising insufficiency of the evi-
dence to support one or more of the elements submitted. Harris County, 96 S.W.3d
230. If there is any question about the sufficiency of the evidence to support one or
more of the elements, the Committee recommends that the elements of damages be
separately submitted to the jury as above.

Exemplary damages. For actions filed before September 1, 2003, see the 2018
edition of this volume for an explanation of the earlier law.

Broad-form submission of elements. For an example of a broad-form submis-
sion of damages elements, see PJC 28.3 comment, “Broad-form submission of ele-
ments."

Instruction not to reduce amounts because of plaintiff's negligence. If the
plaintiff's negligence is also in question, the exclusionary instruction given in this PJC
immediately before the elements of damages is proper. See Tex. Civ. Prac. & Rem.
Code 8 33.001; Tex. R. Civ. P. 277. This instruction should be omitted if there is no
claim of the plaintiff's negligence. Also, if an exclusionary instruction for failure to
mitigate damages is required, this instruction should be modified. See PJC 28.9.

Scope of comments to PJC 28.5. The comments to PJC 28.5 address only those
issues particular to the submission of personal injury damages of a minor child. For
additional issues that may arise with respect to the submission of personal injury dam-
ages generally, see PJC 28.3.

391

PJC 28.6 PERSONAL INJURY DAMAGES

PJC 28.6 Personal Injury Damages— Parents Loss of Services of
Minor Child

QUESTION

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne and Mary Payne for their loss, if any, of Paul Payne, Jr.’s
services, as a result of the occurrence in question?

Do not include interest on any amount of damages you find.
Answer in dollars and cents for damages, if any, that —
were sustained in the past;

Answer:

in reasonable probability will be sustained in the future until age eigh-
teen.

Answer:

COMMENT

When to use. PJC 28.6 submits the question for damages for the parents’ loss of
services of a minor child. The parents’ right to the child’s services and earnings is cod-
ified in Tex. Fam. Code § 151.001(5).

Texas law permits a parent to recover damages for the loss of services of a minor
child. The following types of services are examples from the case law: running
errands, doing yard work, washing dishes, sweeping floors, mopping, dusting, wash-
ing windows, making minor repairs, cutting hay, feeding animals, washing laundry,
performing farmwork, shining shoes, ironing clothes, caddying, harvesting watermel-
ons, and generally helping around the house. See, e.g., Green v. Hale, 590 S.W.2d 231,
235-36 (Tex. App.— Tyler 1979, no writ); Gonzalez v. Hansen, 505 S.W.2d 613, 615
(Tex. App.—San Antonio 1974, no writ).

“The monetary value of a child's lost services is not akin to and cannot be measured
with the mathematical precision of lost wages." Pojar v. Cifre, 199 S.W.3d 317, 347
(Tex. App.—Corpus Christi-Edinburg 2006, pet. denied). But the plaintiff must pres-
ent some evidence of the performance and value of lost services and must also estab-
lish that the injury at issue precludes performance of such services. Pojar, 199 S.W.3d
at 347; Gonzalez, 505 S.W.2d at 615.

392

PERSONAL INJURY DAMAGES PJC 28.6

See PJC 28.5 for the elements of personal injury damages to a minor child. The
above question separately submits past and future damages. See Tex. Fin. Code
§ 304.1045.

No parents’ recovery of *consortium-type" damages in injury cases. The
supreme court has declined to recognize a claim for “consortium-type” damages from
injury not resulting in death to a minor child. See Roberts v. Williamson, 111 S.W.3d
113, 120 (Tex. 2003).

393

PJC 28.7 PERSONAL INJURY DAMAGES

PJC 28.7 Personal Injury Damages—Exemplary Damages

Answer the following question regarding Don Davis only if you unani-
mously answered “Yes” to Question [4.2 or other question authorizing
potential recovery of punitive damages] regarding Don Davis. Otherwise, do
not answer the following question regarding Don Davis.

QUESTION
You are instructed that you must unanimously agree on the amount of any
award of exemplary damages.

What sum of money, if any, should be assessed against Don Davis and
awarded to Paul Payne as exemplary damages for the conduct found in
response to Question [question authorizing potential recovery of puni-
tive damages]?

“Exemplary damages" means any damages awarded as a penalty or by way
of punishment but not for compensatory purposes. Exemplary damages
includes punitive damages.

Factors to consider in awarding exemplary damages, if any, are—
1. The nature of the wrong.
2. The character of the conduct involved.
3. The degree of culpability of the wrongdoer.
4. Thesituation and sensibilities of the parties concerned.

5. The extent to which such conduct offends a public sense of justice
and propriety.

6. The net worth of Don Davis.
Answer in dollars and cents, if any.

Answer:

COMMENT

When to use. PJC 28.7 should be used to submit the question for exemplary dam-
ages for personal injury in causes of action filed on or after September 1, 2003.

Actions filed before September 1, 2003. For actions filed before September 1,
2003, see the 2018 edition of this volume for an explanation of the earlier law.

394

PERSONAL INJURY DAMAGES PJC 28.7

Conditioned on finding of gross negligence or malice. PJC 28.7 must be condi-
tioned on an affirmative finding to a question on gross negligence, malice, or other
finding justifying exemplary damages. Tex. Civ. Prac. & Rem. Code $8 41.001(7),
(11), 41.003(a), (d).

Bifurcation. No predicating instruction is necessary if the court has granted a
timely motion to bifurcate trial of the amount of punitive damages. See Tex. Civ. Prac.
& Rem. Code § 41.009. If in the first phase of the trial the jury finds facts establishing
a predicate for an award of exemplary damages, then a separate phase two jury charge
should be prepared. In such a phase two jury charge, PJC 28.7 should be submitted
with both PJC 1.3 and 1.4 instructions.

Multiple defendants. There should be a separate question and answer blank for
each defendant against whom exemplary damages are sought. Tex. Civ. Prac. & Rem.
Code § 41.006.

Multiple plaintiffs. For multiple plaintiffs, a separate finding on the amount of
exemplary damages awarded to each is appropriate. Tex. Civ. Prac. & Rem. Code
§ 71.010. For an example of submission of apportionment in a single question, see
PJC 29.8.

Prejudgment interest not recoverable. Prejudgment interest on exemplary dam-
ages is not recoverable. Tex. Civ. Prac. & Rem. Code § 41.007.

Limits on conduct to be considered. A defendant's lawful out-of-state conduct
may be probative on some issues in a punitive damages case in certain circumstances.
State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 422 (2003).
When such evidence is admitted, “[a] jury must be instructed . . . that it may not use
evidence of out-of-state conduct to punish a defendant for action that was lawful in the
jurisdiction where it occurred." Campbell, 538 U.S. at 422.

Evidence that the defendant's conduct caused harm to persons who are not before
the court may also be probative of the reprehensibility of the defendant's conduct.
Philip Morris USA v. Williams, 549 U.S. 346, 355—57 (2007). But when this type of
evidence is admitted, the jury should be instructed that it may not punish a defendant
for the harm the defendant's conduct allegedly caused to other persons who are not
parties to the litigation. Williams, 549 U.S. at 357.

Neither Campbell nor Williams specifies whether the requirement of an instruction
means a limiting instruction at the time the evidence is offered, an instruction in the
jury charge, or both.

Source of definition and instructions. The definition of exemplary damages is
derived from Tex. Civ. Prac. & Rem. Code $8 41.001(5), 41.011(a). The factors to
consider are from Tex. Civ. Prac. & Rem. Code § 41.011(a).

395

PJC 28.7 PERSONAL INJURY DAMAGES

Limitation on amount of recovery. For causes of action accruing on or after
September 1, 1995, exemplary damages awarded against a defendant ordinarily may
not exceed an amount equal to the greater of—

(1)(A) two times the amount of economic damages; plus

(B) an amount equal to any noneconomic damages found by the jury,
not to exceed $750,000; or

(2) $200,000.
Tex. Civ. Prac. & Rem. Code § 41.008(b). These limitations will not apply in favor of
a defendant found to have "knowingly" or "intentionally" committed conduct
described as a felony in specified sections of the Texas Penal Code. See Tex. Civ. Prac.
& Rem. Code § 41.008(c), (d).

396

PERSONAL INJURY DAMAGES PJC 28.8

PJC 28.8 Personal Injury Damages—Instruction in Cases
Involving Preexisting Injury or Condition

PJC 28.8A Personal Injury Damages—Instruction in Cases
Involving Preexisting Injury or Condition—No
Aggravation of Preexisting Symptomatic Injury or
Condition and No Eggshell Plaintiff

Do not include any amount for any injury or condition that did not result
from the occurrence in question.

PJC 28.8B Personal Injury Damages—Instruction in Cases
Involving Preexisting Injury or Condition—Aggravation
of Symptomatic Preexisting Injury or Condition

If the damages you found resulted in part from any preexisting injury or con-
dition that was causing symptoms at the time of the occurrence in question, do
not include any amount for any such preexisting injury or condition, except to
the extent the preexisting injury or condition was aggravated by the occurrence
in question.

PJC 28.8C Personal Injury Damages—Instruction in Cases
Involving Preexisting Injury or Condition—
Asymptomatic Preexisting Injury or Condition—Eggshell
Plaintiff

If a preexisting injury or condition was not causing any symptoms at the
time of the occurrence in question but made the plaintiff more susceptible to
injury than a person without that injury or condition, include damages, if any,
resulting from a combination of the preexisting injury or condition and the
occurrence in question.

COMMENT

When to use—after question, before elements of damages. The instructions in
PJC 28.8 address situations in which a plaintiff has a preexisting injury or condition
that (1) is not aggravated by the occurrence in question and does not make the plaintiff
more susceptible to injury by the occurrence in question (PJC 28.8A), (2) is symptom-
atic at the time of the occurrence in question and is aggravated by the occurrence in

397

PJC 28.8 PERSONAL INJURY DAMAGES

question (PJC 28.8B), and (3) is asymptomatic at the time of the occurrence in ques-
tion and makes the plaintiff more susceptible to injury—the “eggshell” or “thin skull”
plaintiff scenario (PJC 28.8C). If one or more of the instructions in PJC 28.8 is appli-
cable, as discussed below, it should be given after the question and before the elements
of damages.

Cases involving no aggravation of preexisting symptomatic injury or condition
and no eggshell plaintiff. PJC 28.8A should be given if there is evidence that the
plaintiff suffers from another physical infirmity not caused or aggravated by the occur-
rence in question and if the injuries flowing from the prior existing injury or condition
and those flowing from the defendant’s negligence are closely connected and inter-
mingled to the extent that the jury might become confused. See Yellow Cab & Bag-
gage Co. v. Green, 277 S.W.2d 92 (Tex. 1955); Dallas Railway & Terminal Co. v. Orr,
215 S.W.2d 862, 864 (Tex. 1948) (citing Dallas Railway & Terminal v. Ector, 116
S.W.2d 683, 685 (Tex. [Comm’n Op.] 1938)). A tortfeasor is liable only for damages
of such general character as might reasonably have been anticipated. See Hoke v.
Poser, 384 S.W.2d 335 (Tex. 1964); Carey v. Pure Distributing Corp., 124 S.W.2d 847
(Tex. 1939).

Cases involving aggravation of preexisting symptomatic injury or
condition. PJC 28.8B should be given if there is evidence that the plaintiff had a
symptomatic preexisting injury or condition that was aggravated by the occurrence in
question. The tortfeasor is liable with regard to the preexisting injury or condition only
to the extent the preexisting injury or condition was aggravated by the occurrence in
question. Ector, 116 S.W.2d at 686; see also Hoke, 384 S.W.2d at 339.

Cases involving preexisting asymptomatic injury or condition—“eggshell
plaintiff." PJC 28.8C may be given if there is evidence that the plaintiff had a preex-
isting injury or condition that was asymptomatic at the time of the occurrence in ques-
tion and which made the plaintiff more susceptible to an injury than a person without
the injury or condition and that the occurrence in question may have aggravated—the
“eggshell plaintiff" or “thin skull” scenario. See Katy Springs & Manufacturing, Inc. v.
Favalora, 476 S.W.3d 579, 591-92 (Tex. App.—Houston [14th Dist.] 2015, pet.
denied); Singh v. Payan, No. 04-17-00111-CV, 2018 WL 4096402, at *5-8 (Tex.
App.—San Antonio Aug. 29, 2018, no pet.); Transcontinental Bus System, Inc. v. Scir-
ratt, 376 S.W.2d 56, 62—63 (Tex. App.— Tyler 1964, writ ref'd n.r.e.). A tortfeasor
takes a plaintiff as he finds him. Coates v. Whittington, 758 S.W.2d 749, 752 (Tex.
1988) (orig. proceeding). Thus, the tortfeasor is held responsible for all injuries caused
by the occurrence in question, even if the plaintiff suffered from a preexisting but
asymptomatic injury or condition before the occurrence in question and therefore suf-
fered a greater degree of injury than a person who does not have such a preexisting
injury or condition would have suffered. Coates, 758 S.W.2d at 752; Driess v. Fred-
erich, 11 S.W. 493, 493-94 (Tex. 1889); Favalora, 476 S.W.3d at 591-92; Thompson
v. Quarles, 297 S.W.2d 321, 329-30 (Tex. App.— Galveston 1956, writ ref'd n.r.e.).

398

PERSONAL INJURY DAMAGES PJC 28.8

Cases involving both aggravation of preexisting symptomatic injury or condi-
tion and preexisting asymptomatic injury or condition. If there is evidence of
both an aggravated symptomatic preexisting injury or condition and an asymptomatic
preexisting injury or condition that enhanced the plaintiff's susceptibility to injury,
both PJC 28.8B and 28.8C may be submitted.

399

PJC 28.9 PERSONAL INJURY DAMAGES

PJC 28.9 Personal Injury Damages—Exclusionary Instruction for
Failure to Mitigate

Do not include any amount for any condition resulting from the failure, if
any, of Paul Payne to have acted as a person of ordinary prudence would have
done under the same or similar circumstances in caring for and treating his
injuries, if any, that resulted from the occurrence in question.

COMMENT

When to use—after question, before elements of damages. PJC 28.9 should be
given if there is evidence that the plaintiff, through want of care, aggravated or failed
to mitigate the effects of his injuries resulting from the occurrence in question. Moul-
ton v. Alamo Ambulance Service, 414 S.W.2d 444 (Tex. 1967); City of Fort Worth v.
Satterwhite, 329 S.W.2d 899 (Tex. App.—Fort Worth 1959, no writ); cf. Armellini
Express Lines of Florida v. Ansley, 605 S.W.2d 297, 309 (Tex. App.— Corpus Christi—
Edinburg 1980, writ ref'd n.r.e.) (evidence failed to show plaintiff was negligent in
gaining weight after car accident and did not support submission of instruction for fail-
ure to mitigate), disapproved on other grounds by Pope v. Moore, 711 S.W.2d 622
(Tex. 1986).

PJC 28.9 may be used under circumstances such as those described in Moulton—

in which there is evidence of negligence on the part of the plaintiff in fail-
ing to consult a doctor, in failing to consult a doctor as soon as a reasonable
prudent person would, in failing to follow a doctor's advice, or simply in
failing properly to care for and treat injuries which do not require the atten-
tion of a doctor.

Moulton, 414 S.W.2d at 450. If applicable, the instruction should be given after the
question and before the elements of damages (PJC 28.3—28.5, 29.3—29.6, and 30.3).

If liability question uses “injury.” If the liability question in PJC 4.1 is submit-
ted with the term "injury," PJC 4.3 should be modified to instruct the jury not to
include failure to mitigate in the percentage of the injury attributable to the plaintiff.
See PJC 4.3.

Modify instruction not to reduce amounts because of plaintiff's negligence. If
PJC 28.9 is given, the instruction not to reduce amounts because of the negligence of

the plaintiff, injured spouse, or decedent, which appears in PJC 28.3—28.5, 29.3—29.6,
30.3, and 31.3-31.4, should be modified to read—

Do not reduce the amounts in your answers because of the negli-
gence, if any, that you have attributed to Paul Payne in Questions
[the negligence question] and [the percentage causa-

400

PERSONAL INJURY DAMAGES PJC 28.9

tion question]. Any recovery will be determined by the court when it
applies the law to your answers at the time of judgment.

Discussion of standards. For discussion of the standards governing submission
of this instruction, see James B. Sales, Limitations on Recovery of Damages in Per-
sonal Injury Actions, 18 S. Tex. L.J. 217, 246—53 (1977).

401

PJC 28.10 PERSONAL INJURY DAMAGES

PJC 28.10 Personal Injury Damages— Child's Loss of Consortium—
Question about Parent's Injury

If you answered “Yes” to Question[s] [question(s) establishing the
liability of one or more defendants], then answer the following question. Other-
wise, do not answer the following question.

QUESTION

Was the physical injury to Paul Payne a serious, permanent, and disabling
injury?
Answer “Yes” or “No.”

Answer:

COMMENT

When to use. PJC 28.10 is to be used in conjunction with PJC 28.11 to submit a
cause of action for loss of parental consortium. See Reagan v. Vaughn, 804 S.W.2d 463
(Tex. 1991). On rehearing, the court addressed the question whether there must be a
separate finding on the nature of the injury or whether an instruction would suffice. It
held that when the facts are disputed “there must be a threshold finding by the finder
of fact that the injury to the parent was a serious, permanent, and disabling injury
before the finder of fact determines the consortium damage issue.” Reagan, 804
S.W.2d at 468.

Use of “physical injury.” The term “physical injury” is used because “the plain-
tiff must show that the defendant physically injured the child’s parent in a manner that
would subject the defendant to liability.” Reagan, 804 S.W.2d at 467. The Committee
expresses no opinion on whether a nonphysical injury could be “serious, permanent,
and disabling.”

402

PERSONAL INJURY DAMAGES PJC 28.11

PJC 28.11 Personal Injury Damages—Child’s Loss of Consortium—
Damages Question

If you answered “Yes” to Question [28.10], then answer the follow-
ing question. Otherwise, do not answer the following question.

QUESTION

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Polly Payne for the loss, if any, of parental consortium that resulted
from the physical injury to Paul Payne?

"Parental consortium" means the positive benefits flowing from the parent's
love, affection, protection, emotional support, services, companionship, care,
and society.

In considering your answer to this question, you may consider only the fol-
lowing factors: the severity of the injury to the parent and its actual effect on
the parent-child relationship, the child's age, the nature of the child's relation-
ship with the parent, the child's emotional and physical characteristics, and
whether other consortium-giving relationships are available to the child.

Do not include interest on any amount of damages you find. Do not reduce
the amounts, if any, in your answer because of the negligence, if any, of Paul
Payne. Any recovery will be determined by the court when it applies the law to
your answers at the time of judgment.

Answer in dollars and cents for damages, if any, that —
were sustained in the past;

Answer:

in reasonable probability will be sustained in the future.

Answer:

COMMENT

When to use. PJC 28.11 should be used in conjunction with PJC 28.10 to submit
a cause of action for loss of parental consortium. See Reagan v. Vaughn, 804 S.W.2d
463 (Tex. 1991). The above question separately submits past and future damages. See
Tex. Fin. Code § 304.1045.

403

PJC 28.11 PERSONAL INJURY DAMAGES

Definition of *consortium"; factors to consider. The definition of "parental
consortium" and the instruction on what factors the jury may consider are from Rea-
gan, 804 S.W.2d at 467. Although the Committee has suggested a limiting instruction,
the court left open the possibility of other factors. Depending on the facts of the case,
other factors may be added to those listed above, and some of those listed above may
be deleted.

Derivative damages subject to reduction because of negligence of injured
parent. Because a claim for loss of parental consortium, like that for loss of spousal
consortium, is derivative, any percentage of contributory negligence attributable to the
parent will reduce the amount of the child's recovery. Reagan, 804 S.W.2d at 468.

Instruction not to reduce amounts because of negligence of injured parent. If
the negligence of the injured parent is also in question, the exclusionary instruction
given in this PJC before the answer blanks is proper. See Tex. Civ. Prac. & Rem. Code
§ 33.001; Tex. R. Civ. P. 277. This instruction should be omitted if there is no claim of
the injured parent's negligence. Also, if an exclusionary instruction for failure to miti-
gate damages is required, this instruction should be modified. See PJC 28.9.

Mental anguish damages not included. A claim for loss of consortium does not
include a claim for negligent infliction of mental anguish. In Reagan the court specifi-
cally noted that recovery for mental anguish that is not based on the wrongful death
statute requires proof that the plaintiff was “among other things, located at or near the
scene of the accident, and that the mental anguish resulted from a direct emotional
impact upon the plaintiff from the sensory and contemporaneous observance of the
incident, as contrasted with learning of the accident from others after the occurrence."
Reagan, 804 S.W.2d at 467. See PJC 28.3 comment, “Bystander injury.”

404

CHAPTER 29 WRONGFUL DEATH DAMAGES

PJC 29.1 Wrongful Death Damages—Instruction Conditioning

Damages Questions on Liability............ 0.0.0... eee eee 407
PJC 29.2 Wrongful Death Damages—lInstruction on Whether

Compensatory Damages Are Subject to Income Taxes ........ 408
PJC 29.3 Wrongful Death Damages—Claim of Surviving Spouse. ...... 409
PJC 29.4 Wrongful Death Damages—Claim of Surviving Child ........ 415
PIC 29.5 Wrongful Death Damages—Claim of Surviving Parents of

Minor CInlds i. cieebeankbertbibbebQ4ROPCOPOPRR X aped ee UR 419
PJC 29.6 Wrongful Death Damages—Claim of Surviving Parents of

Adult MG) essen bres ed hare sa ed ha PENNE Re SUR o SUA eee 422
PA 28.7 Wrongful Death Damages—Exemplary Damages. ........... 425
PJC 29.8 Wrongful Death Damages—Apportionment of Exemplary

Damages ieee lli od os evi eR ERRORI aes eee ee s 428

405

WRONGFUL DEATH DAMAGES PJC 29.1

PJC 29.1 Wrongful Death Damages—Instruction Conditioning
Damages Questions on Liability

Answer Question [the damages question] if you answered “Yes” for
Don Davis to Question [the liability question] and answered:

1. “No” for Paul Payne to Question [the liability question], or

2. 50 percent or less for Paul Payne to Question [the percent-
age causation question].

Otherwise, do not answer Question [the damages question].

COMMENT

When to use. PJC 29.1 may be used to condition answers to wrongful death dam-
ages questions on a finding of liability as permitted by Tex. R. Civ. P. 277. See H.E.
Butt Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998).

Multiple plaintiffs. For multiple plaintiffs, the instruction should precede the
cluster of damages questions for each plaintiff.

Multiple defendants. For multiple defendants, Don Davis should be replaced
with any of the defendants.

407

PJC 29.2 WRONGFUL DEATH DAMAGES

PJC 29.2 Wrongful Death Damages—Instruction on Whether
Compensatory Damages Are Subject to Income Taxes

COMMENT

When to use. PJC 29.2 should be submitted with the damages question in which
a claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contri-
butions of a pecuniary value, or loss of inheritance. Whether an element of damages is
taxable depends on the substantive tax law pertaining to each cause of action.

Source of instruction. See Tex. Civ. Prac. & Rem. Code § 18.091(b).

408

WRONGFUL DEATH DAMAGES PJC 29.3

PJC 29.3 Wrongful Death Damages—Claim of Surviving Spouse

QUESTION

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Mary Payne for her damages, if any, resulting from the death of Paul
Payne?

]. Pecuniary loss sustained in the past.

“Pecuniary loss" means the loss of the care, maintenance, support, ser-
vices, advice, counsel, and reasonable contributions of a pecuniary value,
excluding loss of inheritance, that Mary Payne, in reasonable probability,
would have received from Paul Payne had he lived.

Answer:

2. Pecuniary loss that, in reasonable probability, will be sustained in
the future.

Answer:

3. Loss of companionship and society sustained in the past.

“Loss of companionship and society” means the loss of the positive ben-
efits flowing from the love, comfort, companionship, and society that Mary
Payne, in reasonable probability, would have received from Paul Payne had
he lived.

Answer:

4. Loss of companionship and society that, in reasonable probability,
will be sustained in the future.

Answer:

409

PJC 29.3 WRONGFUL DEATH DAMAGES

5. Mental anguish sustained in the past.

“Mental anguish” means the emotional pain, torment, and suffering
experienced by Mary Payne because of the death of Paul Payne.

Answer:

6. Mental anguish that, in reasonable probability, will be sustained in
the future.

Answer:

In determining damages for elements 3, 4, 5, and 6, you may consider the
relationship between Mary Payne and Paul Payne, their living arrangements,
any extended absences from one another, the harmony of their family relations,
and their common interests and activities.

7. Loss of inheritance.

*Loss of inheritance" means the loss of the present value of the assets
that the deceased, in reasonable probability, would have added to the estate
and left at natural death to Mary Payne.

Answer:

COMMENT

When to use. PJC 29.3 submits the claim of the surviving spouse for the death of
his or her spouse in a wrongful death action under Tex. Civ. Prac. & Rem. Code
§§ 71.001—.012. Estate of Clifton v. Southern Pacific Transportation Co., 709 S.W.2d
636 (Tex. 1986); see also Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986) (definition of
"mental anguish" and instruction on mental anguish and loss of companionship and
society). The above question separately submits past and future damages. See Tex. Fin.
Code § 304.1045. The “do not compensate twice" instruction is adapted from Golden
Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex. 2003).

Loss of inheritance. Element 7 should be included in the question if there is a
claim for loss of inheritance. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex.
1986). The definition is substantially as it was stated in Yowell at 633. There may be
instances in which additional definitions and instructions are appropriate because,
under the laws of intestacy, whether property is left to a surviving spouse could depend
on whether the property is separate or community, on whether the property is real or
personal, and on which other family members survive the decedent. See comments
below. See also Columbia Medical Center of Las Colinas, Inc. v. Hogue, 271 S.W.3d
238, 254—55 (Tex. 2008), regarding proof requirements for loss of inheritance dam-

410

WRONGFUL DEATH DAMAGES PJC 29.3

ages, and C&H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 323 (Tex. 2005)
(“[T]he willingness of the law to accommodate some indeterminacy in assessing dam-
ages does not mean there are no limits."), abrogated on other grounds by Battaglia v.
Alexander, 177 S. W.3d 893, 909 (Tex. 2005).

Loss of community estate. The Committee believes that the rationale of Yowell
also supports a recovery for loss of what would have been a surviving spouse's
enhanced community estate. Because the survivor's enhanced community-half techni-
cally would not have been an inheritance, there is a question whether it is covered by
the definition of loss of inheritance. As a practical matter, the Yowell definition of loss
of inheritance may adequately embrace loss of an enhanced community-half if it is
undisputed that the surviving spouse would have been the beneficiary of all additions
to the estate either through inheritance or an enhanced community-half, in which event
the dispute would be limited to the amount of the additions.

If there is a dispute whether the surviving spouse would have inherited all the dece-
dent's estate, the Yowell definition may not be adequate to protect the surviving
spouse's absolute right to recover for the loss of his or her enhanced community-half.
In that event the Committee recommends that the following instruction be inserted
between the definition of loss of inheritance and the instruction to answer in dollars
and cents:

By operation of law, one-half of a decedent's community-property
additions to the estate would be left to a surviving spouse as the sur-
viving spouse's own share of community property. Property that a
decedent would have acquired during marriage would be community
property except for items acquired by gift or inheritance.

The descriptions of community property are taken from the Texas Family Code.
Tex. Fam. Code § 3.002. Of course, appropriate instructions and definitions of this
kind may vary depending on the facts of the case.

The roles of a will and the law of intestacy. It would seem that in certain cases the
jury could not properly answer the loss-of-inheritance question without information
concerning the law of wills and intestate succession. The number of variables makes it
virtually impossible to arrive at a standard instruction that takes every aspect of this
problem into account.

Alternative terminology. Problems with a complicated submission of the loss-of-
inheritance damages element might be avoided by using other terminology. For exam-
ple, if there is no factual dispute regarding to whom additions to the estate would pass
from the deceased, the jury inquiry could be limited to the amount of the additions. If
necessary, the laws of inheritance then could be applied to determine the amount of a
particular claimant's recovery, with the following definition substituted for element 7:

7. Loss of addition to the estate.

411

PJC 29.3 WRONGFUL DEATH DAMAGES

“Loss of addition to the estate" means the loss of the present
value of assets that Paul Payne, in reasonable probability, would
have added to the estate existing at the end of his natural life.

Prejudgment interest not recoverable on loss of inheritance. | Prejudgment interest
is not recoverable for element 7, loss of inheritance. Yowell, 703 S.W.2d at 636.

Loss of inheritance and pecuniary loss. If element 7 is not submitted, the phrase
excluding loss of inheritance should be omitted from the definition following element
1. See Moore, 722 S.W.2d 683.

Remarriage does not diminish recovery. Evidence of a spouse's ceremonial
remarriage is admissible. Tex. Civ. Prac. & Rem. Code § 71.005. However, the eco-
nomic circumstances of a new marriage are not admissible to diminish damages that
are recoverable. See Richardson v. Holmes, 525 S.W.2d 293 (Tex. Civ. App.—Beau-
mont 1975, writ ref'd n.r.e.). The U.S. Court of Appeals for the Fifth Circuit has held
that a person is entitled to an instruction that remarriage is not a factor to consider in
assessing damages. Conway v. Chemical Leaman Tank Lines, 525 F.2d 927 (5th Cir.
1976); see also Bailey v. Southern Pacific Transportation Co., 613 F.2d 1385 (5th Cir.
1980).

Exemplary damages. For actions filed before September 1, 2003, see the 2018
edition of this volume for an explanation of the earlier law.

Broad-form submission of elements. When separate answers are not required,
the following broad-form question may be appropriate.

QUESTION

What sum of money, if paid now in cash, would fairly and reason-
ably compensate Mary Payne for her damages, if any, resulting from
the death of Paul Payne?

Consider the elements of damages listed below and none other.
Consider each element separately. Do not award any sum of money
on any element if you have otherwise, under some other element,

412

WRONGFUL DEATH DAMAGES PJC 29.3

awarded a sum of money for the same loss. That is, do not compen-
sate twice for the same loss, if any. Do not include interest on any
amount of damages you find.

1. Pecuniary loss.

“Pecuniary loss” means the loss of the care, maintenance, sup-
port, services, advice, counsel, and reasonable contributions of a
pecuniary value, excluding loss of inheritance, that Mary Payne, in
reasonable probability, would have received from Paul Payne had
he lived.

2. Loss of companionship and society.

“Loss of companionship and society” means the loss of the
positive benefits flowing from the love, comfort, companionship,
and society that Mary Payne, in reasonable probability, would
have received from Paul Payne had he lived.

3. Mental anguish.

“Mental anguish” means the emotional pain, torment, and suf-
fering experienced by Mary Payne because of the death of Paul
Payne.

In determining damages for elements 2 and 3, you may consider
the relationship between Mary Payne and Paul Payne, their living
arrangements, any extended absences from one another, the harmony
of their family relations, and their common interests and activities.
You are reminded that elements 2 and 3, like the other elements of
damages, are separate, and, in awarding damages for one element,
you shall not include damages for the other.

Answer, with respect to the elements listed above, in dollars and
cents for damages, if any, that—

were sustained in the past;

Answer:

in reasonable probability will be sustained in the future.

413

PJC 29.3 WRONGFUL DEATH DAMAGES

Answer:

4. Loss of inheritance.

“Loss of inheritance” means the loss of the present value of
the assets that the deceased, in reasonable probability, would have
added to the estate and left at natural death to Mary Payne.

Answer in dollars and cents for damages, if any.

Answer:

Instruction not to reduce amounts because of decedent's negligence. If the
decedent’s negligence is also in question, the exclusionary instruction given in this
PJC immediately before the elements of damages is proper. See Tex. Civ. Prac. &
Rem. Code § 33.001; Tex. R. Civ. P. 277. This instruction should be omitted if there is
no claim of the decedent’s negligence. Also, if an exclusionary instruction for failure
to mitigate damages is required, this instruction should be modified. See PJC 28.9.

414

WRONGFUL DEATH DAMAGES PJC 29.4

PJC 29.4 Wrongful Death Damages— Claim of Surviving Child

QUESTION

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne, Jr. for his damages, if any, resulting from the death of
Mary Payne?

Answer separately, in dollars and cents, for damages, if any. Do not reduce
the amounts, if any, in your answers because of the negligence, if any, of Mary
Payne. Any recovery will be determined by the court when it applies the law to
your answers at the time of judgment.

]. Pecuniary loss sustained in the past.

“Pecuniary loss" means the loss of the care, maintenance, support, ser-
vices, advice, counsel, and reasonable contributions of a pecuniary value,
excluding loss of inheritance, that Paul Payne, Jr., in reasonable probability,
would have received from Mary Payne had she lived.

Answer:

2. Pecuniary loss that, in reasonable probability, Paul Payne, Jr. will
sustain in the future.

Answer:

3. Loss of companionship and society sustained in the past.

“Loss of companionship and society” means the loss of the positive ben-
efits flowing from the love, comfort, companionship, and society that Paul
Payne, Jr., in reasonable probability, would have received from Mary Payne
had she lived.

Answer:

4. Loss of companionship and society that, in reasonable probability,
Paul Payne, Jr. will sustain in the future.

Answer:

415

PJC 29.4 WRONGFUL DEATH DAMAGES

5. Mental anguish sustained in the past.

“Mental anguish” means the emotional pain, torment, and suffering
experienced by Paul Payne, Jr. because of the death of Mary Payne.

Answer:

6. Mental anguish that, in reasonable probability, Paul Payne, Jr. will
sustain in the future.

Answer:

In determining damages for elements 3, 4, 5, and 6, you may consider the
relationship between Paul Payne, Jr. and Mary Payne, their living arrange-
ments, any extended absences from one another, the harmony of their family
relations, and their common interests and activities.

7. Loss of inheritance.

*Loss of inheritance" means the loss of the present value of the assets
that the deceased, in reasonable probability, would have added to the estate
and left at natural death to Paul Payne, Jr.

Answer:

COMMENT

When to use. PJC 29.4 submits the claim of a surviving child (adult or minor) for
the death of a parent in a wrongful death action under Tex. Civ. Prac. & Rem. Code
$8 71.001—.012. Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986); Sanchez v. Schindler,
651 S.W.2d 249 (Tex. 1983). The above question separately submits past and future
damages. See Tex. Fin. Code § 304.1045. The “do not compensate twice" instruction
is adapted from Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex.
2003).

If surviving child born after parent's death. If the surviving child is born after
the parent's death, the instruction following element 5 should not be given. Also in
that case, the phrase “for the period of time from his birth to today” should be added at
the end of the phrase "sustained in the past" in the answer form.

416

WRONGFUL DEATH DAMAGES PJC 29.4

on whether the property is separate or community, on whether the property is real or
personal, and on which other family members survive the decedent. See comments
below.

Claim of surviving spouse and community property. The Committee believes that
the rationale of Yowell may support a recovery for loss of what would have been a sur-
viving spouse's enhanced community estate. Thus, claims by both a child and a sur-
viving spouse may require an instruction to protect the surviving spouse's absolute
right to recover for the loss of his or her enhanced community-half. See PJC 29.3 com-
ment, *Loss of community estate."

Alternative terminology. Problems with a complicated submission of the loss-of-
inheritance damages element might be avoided by using other terminology. For exam-
ple, if there is no factual dispute regarding to whom additions to the estate would pass
from the deceased, the jury inquiry could be limited to the amount of the additions. If
necessary, the laws of inheritance then could be applied to determine the amount of a
particular claimant’s recovery, with the following definition substituted for element 7:

7. Loss of addition to the estate.

"Loss of addition to the estate" means the loss of the present
value of assets that Mary Payne, in reasonable probability, would
have added to the estate existing at the end of her natural life.

Prejudgment interest not recoverable on loss of inheritance. Prejudgment interest
is not recoverable for element 7, loss of inheritance. Yowell, 703 S.W.2d at 636.

Loss of inheritance and pecuniary loss. If element 7 is not submitted, the phrase
excluding loss of inheritance should be omitted from the definition following element
1. See Moore, 722 S.W.2d 683.

417

PJC 29.4 WRONGFUL DEATH DAMAGES

Exemplary damages. For actions filed before September 1, 2003, see the 2018
edition of this volume for an explanation of the earlier law.

Broad-form submission of elements. For an example of a broad-form submis-
sion of damages elements, see PJC 29.3 comment, “Broad-form submission of ele-
ments."

Instruction not to reduce amounts because of decedent's negligence. If the
decedent's negligence is also in question, the instruction not to reduce amounts
because of the decedent's negligence is proper. See Tex. Civ. Prac. & Rem. Code
§ 33.001; Tex. R. Civ. P. 277. This instruction should be omitted if there is no claim of
the decedent's negligence. Also, if an exclusionary instruction for failure to mitigate
damages is required, this instruction should be modified. See PJC 28.9.

418

WRONGFUL DEATH DAMAGES PJC 29.5

PJC 29.5 Wrongful Death Damages— Claim of Surviving Parents
of Minor Child

QUESTION

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne and Mary Payne for their damages, if any, resulting from
the death of Paul Payne, Jr.?

1. Pecuniary loss sustained in the past by

Paul Payne Answer:

Mary Payne Answer:

“Pecuniary loss" means the loss of the care, maintenance, support, ser-
vices, advice, counsel, and reasonable contributions of a pecuniary value that
Paul Payne and Mary Payne, in reasonable probability, would have received
from Paul Payne, Jr. had he lived.

2. Pecuniary loss that, in reasonable probability, will be sustained in
the future by

Paul Payne Answer:
Mary Payne Answer:
3. Loss of companionship and society sustained in the past by
Paul Payne Answer:
Mary Payne Answer:

“Loss of companionship and society" means the loss of the positive ben-
efits flowing from the love, comfort, companionship, and society that Paul
Payne and Mary Payne, in reasonable probability, would have received from
Paul Payne, Jr. had he lived.

419

PJC 29.5 WRONGFUL DEATH DAMAGES

4. Loss of companionship and society that, in reasonable probability,
will be sustained in the future by

Paul Payne Answer:
Mary Payne Answer:
5. Mental anguish sustained in the past by
Paul Payne Answer:
Mary Payne Answer:

“Mental anguish” means the emotional pain, torment, and suffering
experienced by Paul Payne and Mary Payne because of the death of Paul
Payne, Jr.

6. Mental anguish that, in reasonable probability, will be sustained in
the future by

Paul Payne Answer:

Mary Payne Answer:

In determining damages for elements 3, 4, 5, and 6, you may consider the
relationship between Paul Payne, Jr. and his parents, their living arrangements,
any extended absences from one another, the harmony of their family relations,
and their common interests and activities.

COMMENT

When to use. PJC 29.5 submits the claim of the surviving parents for the death of
their minor child in a wrongful death action under Tex. Civ. Prac. & Rem. Code
$8 71.001—.012. Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986); Sanchez v. Schindler,
651 S.W.2d 249 (Tex. 1983). The above question separately submits past and future
damages. See Tex. Fin. Code § 304.1045. The “do not compensate twice" instruction
is adapted from Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex.
2003).

Earnings of minor child. The earnings of a minor child are subject to the “joint
management, control, and disposition of the parents." Tex. Fam. Code § 3.103. The
Committee expresses no opinion on whether pecuniary loss under elements 1 and 2
should be awarded jointly to the parents or to each parent separately, unless the parents
are separated or divorced. See Tex. Civ. Prac. & Rem. Code $ 71.010(b).

Loss of inheritance. In the unlikely event that there is a valid claim for loss of
inheritance in this situation, see PJC 29.3 and 29.4 comments, “Loss of inheritance.”

420

WRONGFUL DEATH DAMAGES PJC 29.5

Separate answer for each element. For actions filed on or after September 1,
2003, the Code requires economic damages to be determined "separately from the
amount of other compensatory damages." Tex. Civ. Prac. & Rem. Code $ 41.008(a).
Also, broad-form submission of multiple elements of damages may lead to harmful
error if there is a proper objection raising insufficiency of the evidence to support one
or more of the elements submitted. Harris County v. Smith, 96 S.W.3d 230 (Tex.
2002). If there is any question about the sufficiency of the evidence to support one or
more of the elements, the Committee recommends that the elements of damages be
separately submitted to the jury as above.

Broad-form submission of elements. For an example of a broad-form submis-
sion of damages elements, see PJC 29.3 comment, “Broad-form submission of ele-
ments."

Instruction not to reduce amounts because of decedent's negligence. If the
decedent's negligence is also in question, the exclusionary instruction given in this
PJC immediately before the answer blanks is proper. See Tex. Civ. Prac. & Rem. Code
8 33.001; Tex. R. Civ. P. 277. This instruction should be omitted if there 1s no claim of
the decedent's negligence. Also, if an exclusionary instruction for failure to mitigate
damages is required, this instruction should be modified. See PJC 28.9.

421

PJC 29.6 WRONGFUL DEATH DAMAGES

PJC 29.6 Wrongful Death Damages— Claim of Surviving Parents
of Adult Child

QUESTION

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne and Mary Payne for their damages, if any, resulting from
the death of Paul Payne, Jr.?

]. Pecuniary loss sustained in the past by

Paul Payne Answer:

Mary Payne Answer:

2. Pecuniary loss that, in reasonable probability, will be sustained in
the future by

Paul Payne Answer:
Mary Payne Answer:
3. Loss of companionship and society sustained in the past by
Paul Payne Answer:
Mary Payne Answer:

422

WRONGFUL DEATH DAMAGES PJC 29.6

4. Loss of companionship and society that, in reasonable probability,
will be sustained in the future by

Paul Payne Answer:
Mary Payne Answer:
5. Mental anguish sustained in the past by
Paul Payne Answer:
Mary Payne Answer:

“Mental anguish” means the emotional pain, torment, and suffering
experienced by Paul Payne and Mary Payne because of the death of Paul
Payne, Jr.

6. Mental anguish that, in reasonable probability, will be sustained in
the future by

Paul Payne Answer:

Mary Payne Answer:

COMMENT

When to use. PJC 29.6 submits the claim of the surviving parents for the death of
their adult child in a wrongful death action under Tex. Civ. Prac. & Rem. Code
$8 71.001—.012. Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986); Sanchez v. Schindler,
651 S.W.2d 249 (Tex. 1983). The above question separately submits past and future
damages. See Tex. Fin. Code § 304.1045. The “do not compensate twice" instruction
is adapted from Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex.
2003).

Loss of inheritance. In the unlikely event that there is a valid claim for loss of
inheritance in this situation, see PJC 29.3 and 29.4 comments, “Loss of inheritance."

Separate answer for each element. For actions filed on or after September 1,
2003, the Code requires economic damages to be determined "separately from the
amount of other compensatory damages.” Tex. Civ. Prac. & Rem. Code § 41.008(a).
Also, broad-form submission of multiple elements of damages may lead to harmful
error if there is a proper objection raising insufficiency of the evidence to support one
or more of the elements submitted. Harris County v. Smith, 96 S.W.3d 230 (Tex.

423

PJC 29.6 WRONGFUL DEATH DAMAGES

2002). If there is any question about the sufficiency of the evidence to support one or
more of the elements, the Committee recommends that the elements of damages be
separately submitted as above.

Broad-form submission of elements. For an example of a broad-form submis-
sion of damages elements, see PJC 29.3 comment, “Broad-form submission of ele-
ments."

Instruction not to reduce amounts because of decedent's negligence. If the
decedent's negligence is also in question, the exclusionary instruction given in this
PJC immediately before the answer blanks is proper. See Tex. Civ. Prac. & Rem. Code
§ 33.001; Tex. R. Civ. P. 277. This instruction should be omitted if there is no claim of
the decedent's negligence. Also, if an exclusionary instruction for failure to mitigate
damages is required, this instruction should be modified. See PJC 28.9.

424

WRONGFUL DEATH DAMAGES PJC 29.7

PJC 29.7 Wrongful Death Damages—Exemplary Damages

QUESTION
You are instructed that you must unanimously agree on the amount of any
award of exemplary damages.

What sum of money, if any, should be assessed against Don Davis and
awarded to Paul Payne as exemplary damages for the conduct found in
response to Question [4.2 or other question authorizing potential
recovery of punitive damages]?

“Exemplary damages” means any damages awarded as a penalty or by way
of punishment but not for compensatory purposes. Exemplary damages
includes punitive damages.

5. The extent to which such conduct offends a public sense of justice
and propriety.

6. The net worth of Don Davis.
Answer in dollars and cents, if any.

Answer:

COMMENT

When to use. PJC 29.7 should be used to submit the question of exemplary dam-
ages for wrongful death for causes of action filed on or after September 1, 2003.

Actions filed before September 1, 2003. For actions filed before September 1,
2003, see the 2018 edition of this volume for an explanation of the earlier law.

425

PJC 29.7 WRONGFUL DEATH DAMAGES

Conditioned on finding of gross negligence or malice. PJC 29.7 must be condi-
tioned on an affirmative finding to a question on gross negligence, malice, or other
finding justifying exemplary damages. Tex. Civ. Prac. & Rem. Code $88 41.001(7),
(11), 41.003(a), (d).

Bifurcation. No predicating instruction is necessary if the court has granted a
timely motion to bifurcate trial of the amount of punitive damages. See Transportation
Insurance Co. v. Moriel, 879 S.W.2d 10, 29-30 (Tex. 1994); Tex. Civ. Prac. & Rem.
Code § 41.009. If in the first phase of the trial the jury finds facts establishing a predi-
cate for an award of exemplary damages, then a separate phase two jury charge should
be prepared. In such a phase two jury charge, PJC 29.7 should be submitted with both
PJC 1.3 and 1.4 instructions.

Exemplary damages for wrongful death under Texas Constitution. Exemplary
damages in cases of “homicide, through wilful act, or omission, or gross neglect" are
authorized by article XVI, section 26, of the Texas Constitution. Only the survivors
enumerated in the constitutional provision (“surviving husband, widow, heirs of his or
her body") may recover. General Chemical Corp. v. De La Lastra, 852 S.W.2d 916,
923 (Tex. 1993) (parents of deceased child may not recover exemplary damages), dis-
approved of on other grounds by Vogler v. Blackmore, 352 F.3d 150 (5th Cir. 2003). A
separate answer is recommended with respect to each constitutionally designated sur-
vivor. For the pattern question for apportionment of exemplary damages, see PJC 29.8.

Actual damages in suit against employer covered by Workers? Compensation
Act no longer required. Formerly, in a suit maintained by a survivor for exemplary
damages against an employer covered by the Workers’ Compensation Act, Tex. Lab.
Code 8 408.001, an additional question on the amount of actual damages was advis-
able. To recover exemplary damages, the plaintiff had to show himself entitled to
recover actual damages, which he would have recovered but for the Act. Fort Worth
Elevators Co. v. Russell, 70 S.W.2d 397, 409 (Tex. 1934), disapproved by Wright v.
Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987). An additional rationale was to
permit an evaluation of the reasonableness of the ratio between the actual and exem-
plary damages. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 308 (Tex. 2006);
see Alamo National Bank v. Kraus, 616 S.W.2d 908 (Tex. 1981). Under Wright, 725
S.W.2d 712, a plaintiff no longer needs to secure a finding on actual damages in this
situation. But see Tex. Civ. Prac. & Rem. Code § 41.002 (after 1995 and 1997 amend-
ments, death actions against workers' compensation subscribers no longer specifically
excluded from application of chapter 41); Hall v. Diamond Shamrock Refining Co., 82
S.W.3d 5 (Tex. App.—San Antonio 2001), rev’d on other grounds, 168 S.W.3d 164
(Tex. 2005).

Exemplary damages under survival statute. Exemplary damages on behalf of a
decedent are recoverable by the estate under the survival statute. Tex. Civ. Prac. &
Rem. Code § 71.021; Hofer v. Lavender, 679 S.W.2d 470 (Tex. 1984); Castleberry v.
Goolsby Building Corp., 617 S.W.2d 665 (Tex. 1981). See PJC 30.4.

426

WRONGFUL DEATH DAMAGES PJC 29.7

Multiple defendants. There should be a separate question and answer blank for
each defendant against whom exemplary damages are sought. See Tex. Civ. Prac. &
Rem. Code § 41.006.

Multiple plaintiffs. For multiple plaintiffs, a separate finding on the amount of
exemplary damages awarded to each is appropriate. See Tex. Civ. Prac. & Rem. Code
§ 71.010. For an example of submission of apportionment in a single question, see
PJC 29.8.

Prejudgment interest not recoverable. Prejudgment interest on exemplary dam-
ages is not recoverable. Tex. Civ. Prac. & Rem. Code $ 41.007.

Neither Campbell nor Williams specifies whether the requirement of an instruction
means a limiting instruction at the time the evidence is offered, an instruction in the
jury charge, or both.

Source of definition and instructions. The definition of exemplary damages in
PJC 29.7 is derived from Tex. Civ. Prac. & Rem. Code $8 41.001(5), 41.011(a). The
factors to consider are from Tex. Civ. Prac. & Rem. Code § 41.011(a).

(1)(A) two times the amount of economic damages; plus

(B) an amount equal to any noneconomic damages found by the jury,
not to exceed $750,000; or

(2) $200,000.
Tex. Civ. Prac. & Rem. Code § 41.008(b). These limitations will not apply in favor
of a defendant found to have "knowingly" or "intentionally" committed conduct

described as a felony in specified sections of the Texas Penal Code. See Tex. Civ. Prac.
& Rem. Code § 41.008(c), (d).

427

PJC 29.8 WRONGFUL DEATH DAMAGES

PJC 29.8 Wrongful Death Damages—Apportionment of
Exemplary Damages
If, in your answer to Question [29.7], you entered any amount of
exemplary damages, then answer Question [29.8]. Otherwise, do not
answer Question [29.6].
QUESTION.

How do you apportion the exemplary damages between Mary Payne and
Paul Payne, Jr.?

Answer by stating a percentage for each person named below. The percent-
ages you find must total 100 percent.

1. Mary Payne %

2. Paul Payne, Jr. %

Total 100 %
COMMENT

When to use. For multiple plaintiffs, a separate finding of the amount of exem-
plary damages awarded to each is appropriate. Tex. Civ. Prac. & Rem. Code
§§ 71.009, 71.010. PJC 29.8 is a submission of apportionment in a single question.

428

CHAPTER 30

PJC 30.1

PJC 30.2

PJC 30.3
PJC 30.4

SURVIVAL DAMAGES

Survival Damages—Instruction Conditioning Damages
Questions on Liability... 0.0.0... cece nee

Survival Damages—Instruction on Whether Compensatory
Damages Are Subject to Income Taxes...............20-005

Survival Damages—Compensatory Damages ...............

Survival Damages—Exemplary Damages ...................

429

SURVIVAL DAMAGES PJC 30.1

PJC 30.1 Survival Damages—Instruction Conditioning Damages
Questions on Liability

Answer Question [the damages question] if you answered “Yes” for
Don Davis to Question [the liability question] and answered:

1. “No” for Paul Payne to Question [the liability question], or

2. 50 percent or less for Paul Payne to Question [the percent-
age causation question].

Otherwise, do not answer Question [the damages question].

COMMENT

When to use. PJC 30.1 may be used to condition answers to survival damages
questions on a finding of liability as permitted by Tex. R. Civ. P. 277. See H.E. Butt
Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998).

Multiple plaintiffs. For multiple plaintiffs, the instruction should precede the
cluster of damages questions for each plaintiff.

Multiple defendants. For multiple defendants, Don Davis should be replaced
with any of the defendants.

431

PJC 30.2 SURVIVAL DAMAGES

PJC 30.2 Survival Damages—Instruction on Whether
Compensatory Damages Are Subject to Income Taxes

COMMENT

When to use. PJC 30.2 should be submitted with the damages question in which
a claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contri-
butions of a pecuniary value, or loss of inheritance. Whether an element of damages is
taxable depends on the substantive tax law pertaining to each cause of action.

Source of instruction. See Tex. Civ. Prac. & Rem. Code § 18.091(b).

432

SURVIVAL DAMAGES PJC 30.3

PJC 30.3 Survival Damages—Compensatory Damages

QUESTION
What sum of money would have fairly and reasonably compensated Paul
Payne for—
]. Pain and mental anguish.

*Pain and mental anguish" means the conscious physical pain and emo-
tional pain, torment, and suffering experienced by Paul Payne before his
death as a result of the occurrence in question.

Answer in dollars and cents for damages, if any.

Answer:

2. Medical expenses.

“Medical expenses" means the reasonable expense of the necessary med-
ical and hospital care received by Paul Payne for treatment of injuries sus-
tained by him as a result of the occurrence in question.

Answer in dollars and cents for damages, if any.

Answer:

3. Funeral and burial expenses.

“Funeral and burial expenses” means the reasonable amount of expenses
for funeral and burial for Paul Payne reasonably suitable to his station in
life.

Answer in dollars and cents for damages, if any.

Answer:

Do not reduce the amount, if any, in your answers because of the negligence,
if any, of Paul Payne. Any recovery will be determined by the court when it
applies the law to your answers at the time of judgment.

COMMENT

When to use. PJC 30.3 submits the damages question for the decedent’s con-
scious pain and suffering, medical expenses, and/or funeral and burial expenses in a
survival action brought under Tex. Civ. Prac. & Rem. Code § 71.021. See Bedgood v.

433

PJC 30.3 SURVIVAL DAMAGES

Madalin, 600 S.W.2d 773 (Tex. 1980); Missouri Pacific Railroad v. Dawson, 662
S.W.2d 740 (Tex. App.—Corpus Christi-Edinburg 1983, writ ref'd n.r.e.); Mitchell v.
Akers, 401 S.W.2d 907 (Tex. App.— Dallas 1966, writ ref'd n.r.e.).

Elements may be included or omitted. PJC 30.3 is intended to include all ele-
ments of damages that accrued to the decedent from the time of injury until death. If
there is evidence of any other element, it should be included, and if there is no evi-
dence of any stated element, it should be omitted.

Nature of medical, funeral, and burial claims allowed. Damages claimed for
the decedent's medical, funeral, and burial expenses are properly the subject of a sur-
vival action brought by the personal representative under Tex. Civ. Prac. & Rem. Code
§ 71.021. See Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, 849-50 (Tex.
2005); Tarrant County Hospital District v. Jones, 664 S.W.2d 191 (Tex. App.—Fort
Worth 1984, no writ). However, these damages have also been permitted in a suit for
wrongful death under Tex. Civ. Prac. & Rem. Code $8 71.001—.012, provided that
double recovery is not allowed. Landers, 369 S.W.2d at 35; Murray v. Templeton, 576
S.W.2d 138 (Tex. App.—Texarkana 1978, no writ). In such instances, element 2
should be reworded to cover only those expenses actually paid or incurred. See Tex.
Civ. Prac. & Rem. Code § 41.0105. If expenses are contested, the reasonableness of
the medical, funeral, and burial expenses must be proved. Folsom Investments, Inc. v.
Troutz, 632 S.W.2d 872 (Tex. App.—Fort Worth 1982, writ ref'd n.r.e.). Also, funeral
and burial expenses must be “reasonably suitable" to the decedent's “station in life.”
See Texas & New Orleans Railroad v. Landrum, 264 S.W.2d 530, 539 (Tex. App.—
Beaumont 1954, writ ref'd n.r.e.).

Medical care—specific items. The phrase medical and hospital care in element
2 may be replaced with a list of specific items (e.g., physicians ' fees, hospital bills,
medicines, nursing services) raised by the evidence.

Separate answer for each element. For actions filed on or after September 1,
2003, the Code requires economic damages to be determined "separately from the

434

SURVIVAL DAMAGES PJC 30.3

amount of other compensatory damages." Tex. Civ. Prac. & Rem. Code $ 41.008(a).
Also, separate submission of elements may be called for in the following instances.

Insufficient evidence. Broad-form submission of multiple elements of damages
may lead to harmful error if there is a proper objection raising insufficiency of the evi-
dence to support one or more of the elements submitted. Harris County, 96 S.W.3d
230. If there is any question about the sufficiency of the evidence to support one or
more of the elements, the Committee recommends that the elements of damages be
separately submitted to the jury as above.

Exemplary damages. For actions filed before September 1, 2003, see the 2018
edition of this volume for an explanation of the earlier law.

Broad-form submission of elements. When separate answers are not required,
the following broad-form submission may be appropriate.

QUESTION

What sum of money would have fairly and reasonably compen-
sated Paul Payne for—

]. Pain and mental anguish.

“Pain and mental anguish” means the conscious physical pain
and emotional pain, torment, and suffering experienced by Paul
Payne before his death as a result of the occurrence in question.

2. Medical expenses.

"Medical expenses" means the reasonable expense of the nec-
essary medical and hospital care received by Paul Payne for treat-
ment of injuries sustained by him as a result of the occurrence in
question.

3. Funeral and burial expenses.

“Funeral and burial expenses" means the reasonable amount
of expenses for funeral and burial for Paul Payne reasonably suit-
able to his station in life.

Do not reduce the amount, if any, in your answer because of the
negligence, if any, of Paul Payne. Any recovery will be determined
by the court when it applies the law to your answers at the time of
judgment.

Answer in dollars and cents for damages, if any.

Answer:

435

PJC 30.3 SURVIVAL DAMAGES

Instruction not to reduce amounts because of decedent's negligence. If the
decedent's negligence is also in question, the exclusionary instruction given in this
PJC is proper. See Tex. Civ. Prac. & Rem. Code § 33.001; Tex. R. Civ. P. 277. This
instruction should be omitted if there is no claim of the decedent's negligence. Also, if
an exclusionary instruction for failure to mitigate damages is required, this instruction
should be modified. See PJC 28.9.

Prejudgment interest. Prejudgment interest is recoverable on survival damages.
Tex. Fin. Code § 304.102.

436

SURVIVAL DAMAGES PJC 30.4

PJC 30.4 Survival Damages—Exemplary Damages

QUESTION
You are instructed that you must unanimously agree on the amount of any
award of exemplary damages.

“Exemplary damages” means any damages awarded as a penalty or by way
of punishment but not for compensatory purposes. Exemplary damages
includes punitive damages.

5. The extent to which such conduct offends a public sense of justice
and propriety.

6. The net worth of Don Davis.
Answer in dollars and cents, if any.

Answer:

COMMENT

When to use. PJC 30.4 submits the question of exemplary damages in a survival
action. Exemplary damages on behalf of a decedent are recoverable by the estate under
the survival statute. Tex. Civ. Prac. & Rem. Code § 71.021; Hofer v. Lavender, 679
S.W.2d 470 (Tex. 1984); Castleberry v. Goolsby Building Corp., 617 S.W.2d 665 (Tex.

437

PJC 30.4 SURVIVAL DAMAGES

1981). The above submission assumes that Paul Payne is acting as representative of
the estate.

Actions filed before September 1, 2003. For actions filed before September 1,
2003, see the 2018 edition of this volume for an explantion of the earlier law.

Conditioned on finding of gross negligence or malice. PJC 30.4 must be condi-
tioned on an affirmative finding to a question on gross negligence, malice, or other
finding justifying exemplary damages. Tex. Civ. Prac. & Rem. Code $8 41.001(7),
(11), 41.003(a), (d).

Bifurcation. No predicating instruction is necessary if the court has granted a
timely motion to bifurcate trial of the amount of punitive damages. See Transportation
Insurance Co. v. Moriel, 879 S.W.2d 10, 29-30 (Tex. 1994); Tex. Civ. Prac. & Rem.
Code § 41.009. If in the first phase of the trial the jury finds facts establishing a predi-
cate for an award of exemplary damages, then a separate phase two jury charge should
be prepared. In such a phase two jury charge, PJC 30.4 should be submitted with both
PJC 1.3 and 1.4 instructions.

Multiple defendants. There should be a separate question and answer blank for
each defendant against whom exemplary damages are sought. Tex. Civ. Prac. & Rem.
Code § 41.006.

438

SURVIVAL DAMAGES PJC 30.4

Prejudgment interest not recoverable. Prejudgment interest on exemplary dam-
ages is not recoverable. Tex. Civ. Prac. & Rem. Code § 41.007.

Limits on conduct to be considered. A defendant’s lawful out-of-state conduct
may be probative on some issues in a punitive damages case in certain circumstances.
State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 422 (2003).
When such evidence is admitted, “[a] jury must be instructed . . . that it may not use
evidence of out-of-state conduct to punish a defendant for action that was lawful in the
jurisdiction where it occurred.” Campbell, 538 U.S. at 422.

Evidence that the defendant’s conduct caused harm to persons who are not before
the court may also be probative of the reprehensibility of the defendant’s conduct.
Philip Morris USA v. Williams, 549 U.S. 346, 355-57 (2007). But when this type of
evidence is admitted, the jury should be instructed that it may not punish a defendant
for the harm the defendant’s conduct allegedly caused to other persons who are not
parties to the litigation. Williams, 549 U.S. at 357.

Neither Campbell nor Williams specifies whether the requirement of an instruction
means a limiting instruction at the time the evidence is offered, an instruction in the
jury charge, or both.

Source of definition and instructions. The definition of exemplary damages in
PJC 30.4 is derived from Tex. Civ. Prac. & Rem. Code §§ 41.001(5), 41.011(a). The
factors to consider are from Tex. Civ. Prac. & Rem. Code § 41.011(a).

(1)(A) two times the amount of economic damages; plus

(B) an amount equal to any noneconomic damages found by the jury,
not to exceed $750,000; or

(2) $200,000.
Tex. Civ. Prac. & Rem. Code § 41.008(b). These limitations will not apply in favor
of a defendant found to have “knowingly” or “intentionally” committed conduct

described as a felony in specified sections of the Texas Penal Code. See Tex. Civ. Prac.
& Rem. Code § 41.008(c), (d).

439

CHAPTER 31

PJC 31.1

PIC 3L2

PJC 31.3

PJC 31.4

PJC 31.4A

PJC 31.4B

PROPERTY DAMAGES

Property Damages—Instruction Conditioning Damages
Questions on Liability... 0.2.0... cee

Property Damages—lInstruction on Whether
Compensatory Damages Are Subject to Income Taxes ........

Property Damages—- Total Destruction of Property ...........
Property Damages—Partial Destruction of Property ..........

Property Damages—Partial Destruction of Property—
Difference in Market Value Only ................000000-

Property Damages—Partial Destruction of Property—Cost
Of Repalts. «cess Ese RR RR OR que t Reb dU da Ie dato

441

PROPERTY DAMAGES PJC 31.1

PJC 31.1 Property Damages—Instruction Conditioning Damages
Questions on Liability

Answer Question [the damages question] if you answered “Yes” for
Don Davis to Question [the liability question] and answered:

1. “No” for Paul Payne to Question [the liability question], or

2. 50 percent or less for Paul Payne to Question [the percent-
age causation question].

Otherwise, do not answer Question [the damages question].

COMMENT

When to use. PJC 31.1 may be used to condition answers to property damages
questions on a finding of liability as permitted by Tex. R. Civ. P. 277. See H.E. Butt
Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998).

Multiple plaintiffs. For multiple plaintiffs, the instruction should precede the
cluster of damages questions for each plaintiff.

Multiple defendants. For multiple defendants, Don Davis should be replaced
with any of the defendants.

443

PJC 31.2 PROPERTY DAMAGES

PJC 31.2 Property Damages—Instruction on Whether
Compensatory Damages Are Subject to Income Taxes

You are instructed that any monetary recovery for [/ist each element of eco-
nomic or noneconomic damages that is subject to taxation] is subject to [fed-
eral or state] income taxes. Any recovery for [list each element of economic or
noneconomic damages that is not subject to taxation] is not subject to [federal
or state| income taxes.

COMMENT

When to use. PJC 31.2 should be submitted with the damages question in which
a claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contri-
butions of a pecuniary value, or loss of inheritance. Whether an element of damages is
taxable depends on the substantive tax law pertaining to each cause of action.

Source of instruction. See Tex. Civ. Prac. & Rem. Code § 18.091(b).

444

PROPERTY DAMAGES PJC 31.3

PJC 31.3 Property Damages— Total Destruction of Property

QUESTION

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne for damages, if any, to his personal property resulting from
the occurrence in question?

Do not reduce the amounts, if any, in your answers because of the negli-
gence, if any, of Paul Payne. Any recovery will be determined by the court
when it applies the law to your answers at the time of judgment.

1. Market value.

Consider the market value in Clay County, Texas, of Paul Payne’s prop-
erty immediately before the occurrence in question.

“Market value" means the amount that would be paid in cash by a will-
ing buyer who desires to buy, but is not required to buy, to a willing seller
who desires to sell, but is under no necessity of selling.

Answer in dollars and cents for damages, if any.

Answer:

2. Loss of use of property.

Consider the reasonable value of the loss of use of the property during
the time reasonably needed to replace the property, caused by the occurrence
in question.

Answer in dollars and cents for damages, if any.

Answer:

COMMENT

When to use. PJC 31.3 submits the measure of direct damages for the total
destruction of personal property based on the market value before the occurrence. This
is the usual measure for damages for the total destruction of personal property. J&D

445

PJC 31.3 PROPERTY DAMAGES

Towing, LLC v. American Alternative Insurance Corp., 478 S.W.3d 649, 676 (Tex.
2016). It also submits consequential damages for loss of use. J&D Towing, 478 S.W.3d
at 676.

Total destruction. “Total destruction" or “total loss” occurs when the damages
are so extensive that repair would not be economically feasible. J&D Towing, 478
S.W.3d at 657 n.30.

Salvage value. "[T]he liable party may well be entitled to a credit in the amount
of the salvage value of the total-loss vehicle if the owner retains the vehicle." J&D
Towing, 478 S.W.3d at 657 n.30; Balderas-Ramirez v. Felder, 537 S.W.3d 625, 630
n.13 (Tex. App.—Austin 2017, pet. denied) (measure of damages is “vehicle’s market
value immediately before the collision, less the vehicle's salvage value if the owner
opts to retain it”).

Identification of personal property. The words personal property may be
replaced by the specific type of personal property at issue, for example, vehicle.

Name of county. The county referred to should be the county in which the dam-
age occurred. J&D Towing, 478 S.W.3d at 657; Thomas v. Oldham, 895 S.W.2d 352,
359 (Tex. 1995).

Prejudgment interest recoverable. Prejudgment interest is recoverable on prop-
erty damages. Tex. Fin. Code § 304.102; see also J&D Towing, 478 S.W.3d at 677
n.199 (prejudgment interest 1s statutorily required on judgment that includes compen-
sation for both fair market value and loss-of-use damages).

446

PROPERTY DAMAGES PJC 31.4

PJC 31.4 Property Damages— Partial Destruction of Property

PJC 31.44 Property Damages— Partial Destruction of Property—
Difference in Market Value Only

QUESTION

What 1s the difference in the market value in C/ay County, Texas, of Paul
Payne's personal property immediately before and immediately after the
occurrence in question?

Do not reduce the amount, if any, in your answer because of the negligence,
if any, of Paul Payne. Any recovery will be determined by the court when it
applies the law to your answer at the time of judgment.

Answer in dollars and cents for damages, if any.

Answer:

PJC 31.4B Property Damages—Partial Destruction of Property—
Cost of Repairs

QUESTION

What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne for damages, if any, to his personal property resulting from
the occurrence in question?

1. Cost of repairs.

447

PJC 31.4 PROPERTY DAMAGES

Consider the reasonable cost in Clay County, Texas, to restore the per-
sonal property to the condition it was in immediately before the occurrence
in question.

Answer in dollars and cents for damages, if any.

Answer:

2. Loss of use of property.

Consider the reasonable value of the use of the same class of personal
property in question for the period of time reasonably required to repair the
damage, if any, caused by the occurrence in question.

Answer in dollars and cents for damages, if any.

Answer:

COMMENT

When to use. PJC 31.4 submits the measure of damages for the partial destruc-
tion of personal property. PJC 31.4A submits the usual measure for direct damages for
the partial destruction of personal property, which is the difference in the market value
immediately before and immediately after the injury to the property at the place where
the damage was occasioned. J&D Towing, LLC v. American Alternative Insurance
Corp., 478 S.W.3d 649, 656 (Tex. 2016). Alternatively, PJC 31.4B may be used where
it would be economical and reasonable to repair the property and the owner of the
injured property seeks to recover the reasonable costs of such replacements and repairs
as are necessary to restore the damaged article to its condition immediately before the
occurrence. J&D Towing, 478 S.W.3d at 656. PJC 31.4B also submits consequential
damages for loss of use during the time it takes to repair the property. J&D Towing,
478 S.W.3d at 656 (whether owner recovers direct damages under the general rule or
otherwise, owner may recover loss-of-use damages). To prove loss of use of property,
it is not necessary to rent a replacement or show any amount actually expended for a
replacement. See Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115, 118 (Tex.
1984).

Diminution of property value. If the repairs do not completely restore the for-
mer value of the property, the plaintiff may also recover the difference between the
value before the occurrence and the value after repairs. See J&D Towing, 478 S.W.3d
at 656 n.28; Houston Unlimited, Inc. v. Mel Acres Ranch, 443 S.W.3d 820 (Tex. 2014).
PJC 31.4B may then be submitted with an additional element as follows:

3. Difference in market value.

448

PROPERTY DAMAGES PJC 31.4

Consider the difference, if any, in the market value in Clay
County, Texas, of the personal property in question immediately
before the occurrence in question and immediately after the neces-
sary repairs were made to the personal property.

“Market value" means the amount that would be paid in cash by
a willing buyer who desires to buy, but is not required to buy, to a
willing seller who desires to sell, but is under no necessity of selling.

Answer in dollars and cents for damages, if any.

Answer:

Identification of personal property. The words personal property may be
replaced by the specific type of personal property at issue, for example, vehicle.

Name of county. The county referred to should be the county in which the dam-
age occurred. J&D Towing, 478 S.W.3d at 657; Thomas v. Oldham, 895 S.W.2d 352,
359 (Tex. 1995). Determination of the reasonable cost of repairs in the county in
which the damage occurred would not require that repairs actually be made in that
county if such repairs would be unavailable there. See Pasadena State Bank v. Isaac,
228 S.W.2d 127, 129 (Tex. 1950).

Separate answer for each element. Broad-form submission of multiple elements
of damages may lead to harmful error if there is a proper objection raising insuffi-
ciency of the evidence to support one or more of the elements submitted. Harris
County v. Smith, 96 S.W.3d 230 (Tex. 2002). If there is any question about the suffi-
ciency of the evidence to support one or more of the elements, the Committee recom-
mendis that the elements of damages be separately submitted as above.

Prejudgment interest recoverable. Prejudgment interest is recoverable on prop-
erty damages. Tex. Fin. Code § 304.102; see also J&D Towing, 478 S.W.3d at 677
n.199 (prejudgment interest is statutorily required on judgment that includes compen-
sation for both fair market value and loss-of-use damages).

449

CHAPTER 32

PJC 32.1

p i2

PRESERVATION OF CHARGE ERROR

Preservation of Charge Error (Comment)

Broad-Form Issues and the Casteel Doctrine (Comment) ......

451

PRESERVATION OF CHARGE ERROR PJC 32.1

PJC 32.1 Preservation of Charge Error (Comment)

The purpose of this Comment is to make practitioners aware of the need to preserve
their complaints about the jury charge for appellate review and to inform them of
general considerations when attempting to perfect those complaints. It is not intended
as an in-depth analysis of the topic.

Basic rules for preserving charge error.

Objections and requests. Errors in the charge consist of (1) defective questions,
instructions, and definitions actually submitted (that 1s, definitions, instructions, and
questions that, while included in the charge, are nevertheless incorrectly submitted);
and (2) questions, instructions, and definitions that are omitted entirely. Objections are
required to preserve error as to any defect in the charge. In addition, a written request
for a substantially correct question, instruction, or definition is required to preserve
error for certain omissions.

* Defective question, definition, or instruction: Objection

Affirmative errors in the jury charge must be preserved by objection, regard-
less of which party has the burden of proof for the submission. Tex. R. Civ. P.
2774. Therefore, 1f the jury charge contains a defective question, definition, or
instruction, an objection pointing out the error will preserve error for review.

* Omitted definition or instruction: Objection and request

If the omission concerns a definition or an instruction, error must be pre-
served by an objection and a request for a substantially correct definition or
instruction. Tex. R. Civ. P. 274, 278. For this type of omission, it does not
matter which party has the burden of proof. Therefore, a request must be ten-
dered even if the erroneously omitted definition or instruction is in the oppo-
nent's claim or defense.

* Omitted question, Party's burden: Objection and request;
Opponent's burden: Objection

If the omission concerns a question relied on by the party complaining of the
judgment, error must be preserved by an objection and a request for a sub-
stantially correct question. Tex. R. Civ. P. 274, 278. If the omission concerns
a question relied on by the opponent, an objection alone will preserve error
for review. Tex. R. Civ. P. 278. To determine whether error preservation is
required for an opponent's omission, consider that, if no element of an inde-
pendent ground of recovery or defense is submitted in the charge or is
requested, the ground is waived. Tex. R. Civ. P. 279.

453

PJC 32.1 PRESERVATION OF CHARGE ERROR

* Uncertainty about whether the error constitutes an omission or a defect:
Objection and request

If there 1s uncertainty whether an error in the charge constitutes an affirma-
tive error or an omission, the practitioner should both request and object to
ensure the error is preserved. See State Department of Highways & Public
Transportation v. Payne, 838 S.W.2d 235, 239—40 (Tex. 1992).

Timing and form of objections and requests.
* Objections, requests, and rulings must be made—
1. before the reading of the charge to the jury, Tex. R. Civ. P. 272; or

2. by an earlier deadline set by the trial court, King Fisher Marine Service,
L.P. v. Tamez, 443 S.W.3d 838, 843 (Tex. 2014) (providing that such a
deadline must “afford[] the parties a ‘reasonable time’ to inspect and
object to the charge").

* Objections must—

1. be made in writing or dictated to the court reporter in the presence of the
court and opposing counsel, Tex. R. Civ. P. 272; and

2. specifically point out the error and the grounds of complaint, Tex. R. Civ.
P. 274.

* Requests must—

1. be made separate and apart from any objections to the charge, Tex. R. Civ.
PII

be in writing and tendered to the court, Tex. R. Civ. P. 278; and

3. be in substantially correct wording, Tex. R. Civ. P. 278, which does not
mean that the request be absolutely correct, nor does it mean that the
request be merely sufficient to call the matter to the attention of the court,
but instead means that the request is substantively correct and not
affirmatively incorrect. Placencio v. Allied Industrial International, Inc.,
724 S.W.2d 20, 21 (Tex. 1987).

Rulings on objections and requests.
* Rulings on objections may be oral or in writing. Tex. R. Civ. P. 272.

* Rulings on requests must be in writing and must indicate whether the court
refused, granted, or granted but modified the request. Tex. R. Civ. P. 276.

Submitting wrong theory. “[Where] the wrong theory of recovery was submitted
and the correct theory of recovery was omitted entirely, the defendant has no
obligation to object." United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481 (Tex.

454

PRESERVATION OF CHARGE ERROR PJC 32.1

2017). The court held that error had been preserved by raising the argument in the trial
court in a motion for judgment notwithstanding the verdict. Levine, 537 S.W.3d at 482;
see also Tex. R. Civ. P. 279.

Common mistakes that may result in waiver of charge error.

Failing to submit requests in writing (oral or dictated requests will not pre-
Serve error).

Failing to make requests separately from objections to the charge (generally
it is safe to present a party's requests at the beginning of the formal charge
conference, but separate from a party's objections).

Offering requests “en masse," that is, tendering a complete charge or obscur-
ing a proper request among unfounded or meritless requests (submit each
question, definition, or instruction separately, and submit only those import-
ant to the outcome of the trial).

Failing to file with the clerk all requests that the court has marked “refused”
(a prudent practice is to also keep a copy for one’s own file).

Failing to make objections to the court’s charge on the record.

Failing to make objections to the court’s charge before the reading of the
charge to the jury or by an earlier deadline set by the trial court.

Making objections on the record while the jury is deliberating even if by
agreement and with court approval.

Adopting by reference objections to other portions of the court’s charge.

Dictating objections to the court reporter in the judge’s absence (the judge
and opposing counsel should be present).

Relying on or adopting another party’s objections to the court’s charge with-
out obtaining court approval to do so beforehand (as a general rule, each
party must make its own objections).

Relying on a pretrial ruling. See Wackenhut Corp. v. Gutierrez, 453 S.W.3d
917, 919-20, 920 n.3 (Tex. 2015) (per curiam).

Failing to assert at trial the same grounds for charge error urged on appeal
(grounds not distinctly pointed out to the trial court cannot be raised for the
first time on appeal).

Failing to obtain a ruling on an objection or request.

Principle of error preservation. In State Department of Highways & Public Trans-
portation v. Payne, the supreme court stated:

455

PJC 32.1 PRESERVATION OF CHARGE ERROR

There should be but one test for determining if a party has preserved error
in the jury charge, and that is whether the party made the trial court aware
of the complaint, timely and plainly, and obtained a ruling. The more spe-
cific requirements of the rules should be applied, while they remain, to
serve rather than defeat this principle.

Payne, 838 S.W.2d at 241. The goal is to apply the charge rules “in a common sense
manner to serve the purposes of the rules, rather than in a technical manner which
defeats them." Alaniz v. Jones & Neuse, Inc., 907 S.W.2d 450, 452 (Tex. 1995) (per
curiam). The keys to error preservation are (1) when in doubt about how to preserve,
both object and request; and (2) in either case, clarity is essential: make your argu-
ments timely and plainly enough that the trial court is aware of the claimed error, and
get a ruling on the record. See, e.g., Wackenhut, 453 S.W.3d at 919—20.

456

PRESERVATION OF CHARGE ERROR PJC 32.2

PJC 32.2 Broad-Form Issues and the Casteel Doctrine (Comment)

In Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000), the supreme
court held that inclusion of a legally invalid theory in a broad-form liability question
taints the question and requires a new trial. Casteel, 22 S.W.3d at 388—89. The court has
since extended this rule to legal sufficiency challenges to an element of a broad-form
damages question, see Harris County v. Smith, 96 S.W.3d 230, 235—36 (Tex. 2002), and
to complaints about inclusion of an invalid liability theory in a comparative responsibil-
ity finding, see Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 226-28
(Tex. 2005).

The supreme court has recently clarified that harmful error must be presumed, as in
Casteel, when an appellate court cannot determine whether the jury found liability on
an improper basis because a necessary limiting instruction was not submitted despite a
timely request or objection. Benge v. Williams, 548 S.W.3d 466, 475—76 (Tex. 2018)
(reiterating this proposition and stating that “we have twice held that when the ques-
tion allows a finding of liability based on evidence that cannot support recovery, the
same presumption-of-harm rule [from Castee/] must be applied"); see Texas Commis-
sion on Human Rights v. Morrison, 381 S.W.3d 533, 535 (Tex. 2012) (per curiam);
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 863 (Tex. 2009).

When a broad-form submission is infeasible under the Castee/ doctrine and a granu-
lated submission would cure the alleged charge defect, a specific objection to the broad-
form nature of the charge question is necessary to preserve error. Thota v. Young, 366
S.W.3d 678, 690-91 (Tex. 2012) (citing In re A.V., 113 S.W.3d 355, 363 (Tex. 2003); In
re B.L.D., 113 S.W.3d 340, 349—50 (Tex. 2003)). But when a broad-form submission is
infeasible under the Casteel doctrine and a granulated submission would still be errone-
ous because there 1s no evidence to support the submission of a separate question, a spe-
cific and timely objection “to the lack of evidence to support submission of a jury
question,” to “the form of the submission,” or both is necessary. Burbage v. Burbage,
447 S.W.3d 249, 256 (Tex. 2014) (“[W]hether or not an objection to both [the lack of
evidence to support submission of a jury question and the form of the submission] is
required, some timely and specific objection must raise the issue in the trial court.”).
However, “in situations where a party does not raise a Casteel-type objection, that
party surely cannot raise a Casteel issue when it failed to preserve a claim of an invalid
theory of liability that forms the basis of a Casteel-type error.” Burbage, 447 S.W.3d at
256.

457

APPENDIX

Following are the tables of contents of the other volumes in the Texas Pattern Jury
Charges series. These tables represent the 2020 editions of these volumes, which were
the current editions when this book was published. Other topics may be added in future
editions.

The practitioner may also be interested in the Texas Criminal Pattern Jury Charges
serles. Please visit https://www.texasbarpractice.com/texas-bar-books/ for more
information.

Contents of
TEXAS PATTERN JURY CHARGES—MALPRACTICE,
PREMISES & PRODUCTS (2020 Ed.)

CHAPTER 40 ADMONITORY INSTRUCTIONS
PJC 40.1 Instructions to Jury Panel before Voir Dire Examination
PJC 40.2 Instructions to Jury after Jury Selection
PJC 40.3 Charge of the Court
PJC 40.4 Additional Instruction for Bifurcated Trial
PJC 40.5 Instructions to Jury after Verdict
PJC 40.6 Instruction to Jury If Permitted to Separate
PJC 40.7 Instruction If Jury Disagrees about Testimony
PJC 40.8 Circumstantial Evidence (Optional)
PJC 40.9 Instructions to Deadlocked Jury

PJC 40.10 Privilege—Generally No Inference

PJC 40.11 Fifth Amendment Privilege—Adverse Inference May Be
Considered

PJC 40.12 Parallel Theories on Damages

PJC 40.13 Instruction on Spoliation

[Chapters 41—49 are reserved for expansion. ]

459

APPENDIX

CHAPTER 50 MEDICAL MALPRACTICE—DEFINITIONS, INSTRUCTIONS, AND
PRELIMINARY QUESTIONS

PJC 50.1 Physician's Degree of Care; Proximate Cause

PJC 50.2 Hospital's Degree of Care; Proximate Cause

PJC 50.3 Health Care Personnel’s Degree of Care; Proximate Cause

PJC 50.4 New and Independent Cause—Medical

PJC 50.5 Sole Proximate Cause—Medical

PJC 50.6 Physician-Patient Relationship

PJC 50.7 Evidence of Bad Result

PJC 50.8 Open Courts Challenge

CHAPTER 51 MEDICAL MALPRACTICE— THEORIES OF DIRECT LIABILITY

PJC 51.1 Use of "Injury" or *Occurrence" (Comment)

PJC 51.2 Submission of Settling Persons, Contribution Defendants,
and Responsible Third Parties (Comment)

PJC 51.3 Negligence of Physician, Hospital, or Other Health Care
Provider

PJC 51.4 Proportionate Responsibility—Medical

PJC 51.5 Proportionate Responsibility If Contribution Defendant Is
Joined—Medical

PJC 51.6 Proportionate Responsibility—Medical— Derivative Claimant

PJC 51.7 Abandonment of Patient by Physician

PJC 51.8 Res Ipsa Loquitur—Medical (Comment)

PJC 51.9 Informed Consent (Common Law)

PJC 51.10 Informed Consent (Statutory)— Procedure Not on List A or
B—No Emergency or Other Medically Feasible Reason for
Nondisclosure— Disclosure in Issue

PJC 51.11 Informed Consent (Statutory)—Procedure on List A—No
Emergency or Other Medically Feasible Reason for
Nondisclosure—No Disclosure

460

PJC 51.12

PJC 51.13

PJC 51.14

PJC 51.15

PJC 51.16

PJC 51.17

PJC 51.18

PJC 51.19

PJC 51.20

CHAPTER 52

PJC 52.1

PJC 52.2

PJC 52.3

PJC 52.4

CHAPTER 53

Appendix

Informed Consent (Statutory)—Procedure on List A—No
Emergency or Other Medically Feasible Reason for
Nondisclosure— Disclosure Not in Statutory Form

Informed Consent (Statutory)—Procedure on List A—No
Disclosure—Emergency or Other Medically Feasible Reason
for Nondisclosure in Issue

Informed Consent (Statutory)—Procedure on List A—
Validity of Disclosure Instrument in Issue

Battery—Medical

Express Warranty— Medical

Implied Warranty—Medical (Comment)
Emergency Care and Emergency Medical Care
Malicious Credentialing Claim against a Hospital

The Emergency Medical Treatment and Active Labor Act
(EMTALA)—Medical Screening Examinations and/or
Stabilization before Transfer When a Patient Comes to a
Hospital with an Emergency Medical Condition

MEDICAL MALPRACTICE—THEORIES OF VICARIOUS LIABILITY

Borrowed Employee—Medical— Liability of Borrowing
Employer

Borrowed Employee—Medical—Lending Employer’s
Rebuttal Instruction

Borrowed Employee—Medical—Disjunctive Submission
of Lending or Borrowing Employer

Ostensible Agency—Question and Instruction

MEDICAL MALPRACTICE—DEFENSES

[Chapters 54-59 are reserved for expansion. ]

461

APPENDIX

CHAPTER 60

PJC 60.1

PJC 60.2
PJC 60.3

CHAPTER 61

PJC 61.1
PJC 61.2

PJC 61.3
PJC 61.4
PJC 61.5
PJC 61.6

PJC 61.7
PJC 61.8

PJC 61.9

PJC 61.10

PJC 61.11
PJC 61.12

PJC 61.13

462

NONMEDICAL PROFESSIONAL MALPRACTICE—DEFINITIONS AND
INSTRUCTIONS

Nonmedical Professional's Degree of Care; Proximate
Cause

New and Independent Cause—Nonmedical Professional

Sole Proximate Cause—Nonmedical Professional

NONMEDICAL PROFESSIONAL MALPRACTICE— THEORIES OF
RECOVERY

Use of "Injury" or *Occurrence" (Comment)

Submission of Settling Persons, Contribution Defendants,
and Responsible Third Parties (Comment)

Nonmedical Professional Relationship—Existence in Dispute
Question and Instruction on Negligent Misrepresentation
Negligence of Nonmedical Professional

Breach of Fiduciary Duty of Nonmedical Professional
(Comment)

Proportionate Responsibility—Nonmedical Professional

Proportionate Responsibility If Contribution Defendant Is
Joined—Nonmedical Professional

Proportionate Responsibility—Nonmedical Professional—
Derivative Claimant

Liability of Attorneys under Deceptive Trade Practices Act
(Comment)

Attorney-Client Relationship—Existence in Dispute

Breach of Fiduciary Duty against Attorney in His Role as
Attorney— Burden on Attorney

Question on Discovery Rule—Attorney Malpractice, Breach of
Fiduciary Duty, or Fraud

[Chapters 62-64 are reserved for expansion.]

CHAPTER 65

PJC 65.1

PJC 65.2

PJC 65.3
PJC 65.4
PJC 65.5
PJC 65.6
PJC 65.7
PJC 65.8
PJC 65.9

CHAPTER 66
PJC 66.1
PJC 66.2

PJC 66.3

PJC 66.4
PJC 66.5
PJC 66.6
PJC 66.7

PJC 66.8

PJC 66.9

PJC 66.10
PJC 66.11
PJC 66.12

Appendix

PREMISES LIABILITY—DEFINITIONS AND INSTRUCTIONS

Application— Distinction between Premises Defect and
Negligent Activity (Comment)

Negligence and Ordinary Care of Plaintiffs or of Defendants
Other Than Owners or Occupiers of Premises

Child's Degree of Care

Proximate Cause— Premises

New and Independent Cause— Premises
Sole Proximate Cause—Premises
Unavoidable Accident

Act of God

Emergency

PREMISES LIABILITY—THEORIES OF RECOVERY
Use of "Injury" or *Occurrence" (Comment)

Submission of Settling Persons, Contribution Defendants,
and Responsible Third Parties (Comment)

Premises Liability Based on Negligent Activity or Premises
Defect—Right to Control

Premises Liability— Plaintiff Is Invitee
Premises Liability— Plaintiff Is Licensee
Premises Liability—Plaintiff’s Status in Dispute

Premises Liability—Disjunctive Submission of
Invitee-Licensee for Alternate Theories of Recovery

Premises Liability—Plaintiff-Licensee Injured by Gross
Negligence

Premises Liability—Plaintiff Is Trespasser
Premises Liability—Attractive Nuisance
Premises Liability—Proportionate Responsibility

Premises Liability—Proportionate Responsibility If
Contribution Defendant Is Joined

463

APPENDIX

PJC 66.13

PJC 66.14

CHAPTER 70

PJC 70.1
PJC 70.2
PJC 70.3
PJC 70.4
PJC 70.5
PJC 70.6

PJC 70.7

CHAPTER 71
PJC 71.1
PJC 71.2

PJC 71.3
PJC 71.4
PJC 71.5
PJC 71.6
PJC 71.7
PJC 71.8
PJC 71.9

PJC 71.10

464

Premises Liability—Proportionate Responsibility—
Derivative Claimant

Property Owner's Liability to Contractors, Subcontractors,
or Their Employees (Tex. Civ. Prac. & Rem. Code ch. 95)

[Chapters 67—69 are reserved for expansion.]

PRODUCTS LIABILITY—DEFINITIONS, INSTRUCTIONS, AND
PRELIMINARY QUESTIONS

Producing Cause— Products Liability

Proximate Cause—Breach of Warranty

New and Independent Cause—Products Liability
Sole Cause—Products Liability

Seller of a Product

Substantial Change in Condition or Subsequent Alteration
by Affirmative Conduct—Instruction

Statute of Repose (Comment)

PRODUCTS LIABILITY—THEORIES OF RECOVERY
Use of “Injury” or “Occurrence” (Comment)

Submission of Settling Persons, Contribution Defendants,
and Responsible Third Parties (Comment)

Manufacturing Defect

Design Defect

Defect in Warnings or Instructions (Marketing Defect)
Misrepresentation (§ 402B)

Negligence in Products Cases

Negligent Undertaking

Breach of Implied Warranty of Merchantability
(Tex. UCC § 2.314(b)(3)) (Design Defect)

Breach of Implied Warranty of Merchantability
(Tex. UCC 8 2.314(b)(1), (6)(2), (b)(4), (b)(6))

PJC 71.11

PJC 71.12
PJC 71.13
PJC 71.14

PJC 71.15

CHAPTER 72
PJC 72.1

PJC 72.2

PJC 72.3

PJC 72.4

PJC 72.5

PJC 72.6

PJC 72.7

PJC 72.8

PJC 72.9

Appendix

Breach of Implied Warranty of Fitness for a Particular
Purpose (Tex. UCC § 2.315)

Breach of Express Warranty (Tex. UCC § 2.313)
Products Liability—Proportionate Responsibility

Products Liability—Proportionate Responsibility If
Contribution Defendant Is Joined

Products Liability—Proportionate Responsibility—
Derivative Claimant

JOINT AND SEVERAL LIABILITY

Application—Joint and Several Liability as a Consequence
of Certain Penal Code Violations (Comment)

Question and Instructions—Murder
as a Ground for Joint and Several Liability
(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(A))

Question and Instructions—Capital Murder
as a Ground for Joint and Several Liability
(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(B))

Question and Instructions—Aggravated Kidnapping
as a Ground for Joint and Several Liability
(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(C))

Question and Instructions—A ggravated Assault
as a Ground for Joint and Several Liability
(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(D))

Question and Instructions—Sexual Assault
as a Ground for Joint and Several Liability
(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(E))

Question and Instructions—Aggravated Sexual Assault
as a Ground for Joint and Several Liability
(Tex. Civ. Prac. & Rem. Code 8 33.013(b)(2)(F))

Injury to Child, Elderly Individual, or Disabled Individual
as a Ground for Joint and Several Liability
(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(G))

Question and Instructions—Forgery
as a Ground for Joint and Several Liability
(Tex. Civ. Prac. & Rem. Code 8 33.013(b)(2)(H))

465

APPENDIX

PJC 72.10

PJC 72.11

PJC 72.12

PJC 72.13

PJC 72.14

PJC 72.15

CHAPTER 80

PJC 80.1

PJC 80.2

PJC 80.3

PJC 80.4

PJC 80.5
PJC 80.6

466

Question and Instructions— Commercial Bribery
as a Ground for Joint and Several Liability
(Tex. Civ. Prac. & Rem. Code 8 33.013(b)(2)(D)

Question and Instructions—Misapplication of
Fiduciary Property or Property of Financial Institution
as a Ground for Joint and Several Liability

(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(J))

Question and Instructions—Securing Execution
of Document by Deception as a Ground for Joint
and Several Liability

(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(K))

Question and Instructions—Fraudulent Destruction,
Removal, Alteration, or Concealment of Writing as a
Ground for Joint and Several Liability

(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(L))

Question and Instructions— Theft
as a Ground for Joint and Several Liability
(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(M))

Question and Instructions— Continuous Sexual Abuse
of a Young Child or Children as a Ground for Joint
and Several Liability

(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(N))

[Chapters 73—79 are reserved for expansion.]

PERSONAL INJURY DAMAGES

Personal Injury Damages—Instruction Conditioning
Damages Questions on Liability

Personal Injury Damages—Instruction on Whether
Compensatory Damages Are Subject to Income Taxes—
Actions Filed on or after September 1, 2003

Personal Injury Damages— Basic Question
Personal Injury Damages—Injury of Spouse
Personal Injury Damages—Injury of Minor Child

Personal Injury Damages—Parents’ Loss of Services of
Minor Child

Appendix

PJC 80.7 Personal Injury Damages—Instruction in Cases Involving
Preexisting Injury or Condition

PJC 80.8 Personal Injury Damages—Exclusionary Instruction for
Failure to Mitigate

PJC 80.9 Personal Injury Damages—Cautionary Instruction
Concerning Damages Limit in Health Care Suit

PJC 80.10 Personal Injury Damages— Child's Loss of Consortium—
Question about Parent's Injury

PJC 80.11 Personal Injury Damages— Child's Loss of Consortium—
Damages Question

CHAPTER 81 WRONGFUL DEATH DAMAGES

PJC 81.1 Wrongful Death Damages—Instruction Conditioning
Damages Questions on Liability

PJC 81.2 Wrongful Death Damages—Instruction on Whether
Compensatory Damages Are Subject to Income Taxes—
Actions Filed on or after September 1, 2003

PJC 81.3 Wrongful Death Damages— Claim of Surviving Spouse

PJC 81.4 Wrongful Death Damages—Claim of Surviving Child

PJC 81.5 Wrongful Death Damages—Claim of Surviving Parents of
Minor Child

PJC 81.6 Wrongful Death Damages—Claim of Surviving Parents of
Adult Child

PJC 81.7 Wrongful Death Damages—Cautionary Instruction

Concerning Damages Limit in Health Care Suit

CHAPTER 82 SURVIVAL DAMAGES

PJC 82.1 Survival Damages—Instruction Conditioning Damages
Questions on Liability

PJC 82.2 Survival Damages—Instruction on Whether Compensatory
Damages Are Subject to Income Taxes—Actions Filed on
or after September 1, 2003

PJC 82.3 Survival Damages—Compensatory Damages

467

APPENDIX

PJC 82.4

CHAPTER 83

PJC 83.1

PJC 83.2

PJC 83.3
PJC 83.4

CHAPTER 84

PJC 84.1

PJC 84.2

PJC 84.3

PJC 84.4

PJC 84.5

PJC 84.6

PJC 84.7

CHAPTER 85
PJC 85.1
PJC 85.2
PJC 85.3
PJC 85.4

468

Survival Damages—Cautionary Instruction Concerning
Damages Limit in Health Care Suit

PROPERTY DAMAGES

Property Damages—Instruction Conditioning Damages
Questions on Liability

Property Damages—Instruction on Whether Compensatory
Damages Are Subject to Income Taxes—Actions Filed on
or after September 1, 2003

Property Damages—Total Destruction of Property

Property Damages—Partial Destruction of Property

ECONOMIC DAMAGES

Economic Damages—Instruction Conditioning Damages
Questions on Liability

Economic Damages—Instruction on Whether Compensatory
Damages Are Subject to Income Taxes—Actions Filed on
or after September 1, 2003

Economic Damages—Nonmedical Professional Malpractice

Sample Instructions for Economic Damages—
Legal Malpractice

Sample Instructions for Economic Damages—Accounting
Malpractice

Economic Damages—Question and Instruction on Monetary
Loss Caused by Negligent Misrepresentation

Attorney's Fee Forfeiture (Comment)

EXEMPLARY DAMAGES

Standards for Recovery of Exemplary Damages
Imputing Gross Negligence or Malice to a Corporation
Determining Amount of Exemplary Damages

Apportioning Exemplary Damages

PJC 85.5

PJC 85.6

PJC 85.7

PJC 85.8

PJC 85.9

PJC 85.10

PJC 85.11

PJC 85.12

PJC 85.13

PJC 85.14

Appendix

Question and Instructions—Murder as a Statutory Ground
for Removing Limitation on Exemplary Damages
(Tex. Civ. Prac. & Rem. Code § 41.008(c)(1))

Question and Instructions— Capital Murder as a Statutory
Ground for Removing Limitation on Exemplary Damages
(Tex. Civ. Prac. & Rem. Code § 41.008(c)(2))

Question and Instructions—Aggravated Kidnapping as a
Statutory Ground for Removing Limitation on Exemplary
Damages

(Tex. Civ. Prac. & Rem. Code § 41.008(c)(3))

Question and Instructions—Aggravated Assault as a
Statutory Ground for Removing Limitation on
Exemplary Damages

(Tex. Civ. Prac. & Rem. Code § 41.008(c)(4))

Question and Instructions—Sexual Assault as a
Statutory Ground for Removing Limitation on
Exemplary Damages

(Tex. Civ. Prac. & Rem. Code § 41.008(c)(5))

Question and Instructions—Aggravated Sexual Assault as a
Statutory Ground for Removing Limitation on

Exemplary Damages

(Tex. Civ. Prac. & Rem. Code $ 41.008(c)(6))

Injury to a Child, Elderly Individual, or Disabled
Individual as a Statutory Ground for Removing
Limitation on Exemplary Damages

(Tex. Civ. Prac. & Rem. Code $ 41.008(c)(7))

Question and Instructions—Forgery as a Statutory Ground
for Removing Limitation on Exemplary Damages
(Tex. Civ. Prac. & Rem. Code $ 41.008(c)(8))

Question and Instructions— Commercial (Fiduciary)
Bribery as a Statutory Ground for Removing Limitation
on Exemplary Damages

(Tex. Civ. Prac. & Rem. Code $ 41.008(c)(9))

Question and Instructions—Misapplication of Fiduciary
Property as a Statutory Ground for Removing Limitation
on Exemplary Damages

(Tex. Civ. Prac. & Rem. Code § 41.008(c)(10))

469

APPENDIX

PJC 85.15

PJC 85.16

PJC 85.17

PJC 85.18

PJC 85.19

PJC 85.20

PJC 85.21

CHAPTER 86

PJC 86.1

PJC 86.2

Question and Instructions—Securing Execution of
Document by Deception as a Statutory Ground for
Removing Limitation on Exemplary Damages
(Tex. Civ. Prac. & Rem. Code § 41.008(c)(11))

Question and Instructions—Fraudulent Destruction,

Removal, Alteration, or Concealment of Writing as a

Statutory Ground for Removing Limitation on Exemplary Damages
(Tex. Civ. Prac. & Rem. Code § 41.008(c)(12))

Question and Instructions—Theft as a Statutory Ground
for Removing Limitation on Exemplary Damages
(Tex. Civ. Prac. & Rem. Code § 41.008(c)(13))

Question and Instructions—Intoxication Assault as a Statutory
Ground for Removing Limitation on Exemplary Damages
(Tex. Civ. Prac. & Rem. Code § 41.008(c)(14))

Question and Instructions—Intoxication Manslaughter
as a Statutory Ground for Removing Limitation

on Exemplary Damages

(Tex. Civ. Prac. & Rem. Code § 41.008(c)(15))

Question and Instructions— Continuous Sexual Abuse
of Young Child or Children as a Statutory Ground for
Removing Limitation on Exemplary Damages

(Tex. Civ. Prac. & Rem. Code § 41.008(c)(16))

Question and Instructions— Trafficking of Persons
as a Statutory Ground for Removing Limitation on
Exemplary Damages

(Tex. Civ. Prac. & Rem. Code § 41.008(c)(17))

PRESERVATION OF CHARGE ERROR
Preservation of Charge Error (Comment)

Broad-Form Issues and the Casteel Doctrine (Comment)

Contents of

TEXAS PATTERN JURY CHARGES—BUSINESS, CONSUMER,

470

INSURANCE & EMPLOYMENT (2020 Ed.)

CHAPTER 100
PJC 100.1
PJC 100.2
PJC 100.3
PJC 100.4
PJC 100.5
PJC 100.6
PJC 100.7
PJC 100.8
PJC 100.9
PJC 100.10
PJC 100.11

PJC 100.12
PJC 100.13
PJC 100.14

CHAPTER 101
PJC 101.1
PJC 101.2
PJC 101.3
PJC 101.4
PJC 101.5
PJC 101.6
PJC 101.7
PJC 101.8
PJC 101.9
PJC 101.10
PJC 101.11
PJC 101.12

Appendix

ADMONITORY INSTRUCTIONS

Instructions to Jury Panel before Voir Dire Examination
Instructions to Jury after Jury Selection
Charge of the Court

Additional Instruction for Bifurcated Trial
Instructions to Jury after Verdict

Instruction to Jury If Permitted to Separate
Instruction If Jury Disagrees about Testimony
Circumstantial Evidence (Optional)
Instructions to Deadlocked Jury
Privilege—Generally No Inference

Fifth Amendment Privilege—Adverse Inference May Be
Considered

Parallel Theories on Damages
Proximate Cause

Instruction on Spoliation

CONTRACTS

Basic Question—Existence

Basic Question—Compliance
Instruction on Formation of Agreement
Instruction on Authority

Instruction on Ratification

Conditions Precedent (Comment)
Court’s Construction of Provision of Agreement (Comment)
Instruction on Ambiguous Provisions
Trade Custom (Comment)

Instruction on Time of Compliance
Instruction on Offer and Acceptance

Instruction on Withdrawal or Revocation of Offer

471

APPENDIX

PJC 101.13
PJC 101.14

PJC 101.21
PJC 101.22

PJC 101.23
PJC 101.24
PJC 101.25
PJC 101.26
PJC 101.27
PJC 101.28
PJC 101.29
PJC 101.30
PJC 101.31
PJC 101.32
PJC 101.33
PJC 101.34
PJC 101.35
PJC 101.36
PJC 101.37
PJC 101.38

PJC 101.41
PJC 101.42
PJC 101.43
PJC 101.44

472

Instruction on Price

Consideration (Comment)
[PJC 101.15—101.20 are reserved for expansion.]

Defenses— Basic Question

Defenses—Instruction on Plaintiff s Material Breach
(Failure of Consideration)

Defenses—Instruction on Anticipatory Repudiation
Defenses—Instruction on Waiver

Defenses—Instruction on Equitable Estoppel
Defenses—Instruction on Duress

Defenses—Instruction on Undue Influence
Defenses—Instruction on Mutual Mistake of Fact
Defenses—Instruction on Mutual Mistake—Scrivener’s Error
Defenses—Instruction on Novation

Defenses—Instruction on Modification

Defenses—Instruction on Accord and Satisfaction

Defenses—Instruction on Mental Capacity

Defenses—Statute of Frauds (Comment)

Question on Main Purpose Doctrine

Third-Party Beneficiaries (Comment)

Question and Instruction on Meaning of Ambiguous Provisions

Question and Instruction on Reformation as an Affirmative Cause
of Action

[PJC 101.39 and 101.40 are reserved for expansion.]

Question on Promissory Estoppel
Question and Instruction on Quantum Meruit
Money Had and Received (Comment)

Unjust Enrichment (Comment)

PJC 101.46

PJC 101.47

PJC 101.48

PJC 101.49
PJC 101.50
PJC 101.51

PJC 101.56

PJC 101.57

PJC 101.58

PJC 101.59

PJC 101.60

CHAPTER 102

PJC 102.1

PJC 102.2

PJC 102.3
PJC 102.4

Appendix

[PJC 101.45 is reserved for expansion.]
Construction Contracts Distinguished from Ordinary
Contracts (Comment)

Construction Contracts—Question and Instruction—
Misapplication of Trust Funds under the Texas Construction
Trust Funds Act

Construction Contracts—A ffirmative Defenses— Basic
Question

Construction Contracts—A ffirmative Defenses— Instructions
Question on Prompt Payment to Contractors and Subcontractors
Question on Good-Faith Dispute

[PJC 101.52—101.55 are reserved for expansion.]
Insurance Contracts Distinguished from Other Contracts
(Comment)

Insurance Contracts—Compliance— Specific Policy
Language

Insurance Contracts—Coverage and Damages Question—
Specific Policy Language

Insurance Contracts—Exclusions, Limitations, Avoidance, and
Other Affirmative Defenses—Specific Policy Language

Insurance Contracts—Conditions Precedent and Prejudice
(Comment)

THE TEXAS DECEPTIVE TRADE PRACTICES ACT AND
CHAPTER 541 OF THE TEXAS INSURANCE CODE

Question and Instructions on False, Misleading, or Deceptive
Act or Practice (DTPA § 17.46(b))

Description of Goods or Services or Affiliation of Persons
(DTPA § 17.46(b)(5))

Quality of Goods or Services (DTPA § 17.46(b)(7))

Misrepresented and Unlawful Agreements
(DTPA 8 17.46(b)(12))

473

APPENDIX

PJC 102.5
PJC 102.6

PJC 102.7

PJC 102.8

PJC 102.9

PJC 102.10

PJC 102.11

PJC 102.12

PJC 102.13
PJC 102.14

PJC 102.16

PJC 102.17

PJC 102.18

PJC 102.19

PJC 102.21
PJC 102.22

PJC 102.23

474

Failure to Disclose Information (DTPA § 17.46(b)(24))

Other “Laundry List" Violations (DTPA § 17.46(b))
(Comment)

Question and Instructions on Unconscionable Action or
Course of Action (DTPA §§ 17.50(a)(3) and 17.45(5))

Question and Instructions on Warranty
(DTPA § 17.50(a)(2); Tex. UCC §§ 2.313-.315)

Express Warranty—Goods or Services
(DTPA § 17.50(a)(2); Tex. UCC § 2.313)

Implied Warranty of Merchantability—Goods
(DTPA § 17.50(a)(2); Tex. UCC § 2.314(b)(3))

Implied Warranty of Fitness for Particular Purpose—
Goods (DTPA § 17.50(a)(2); Tex. UCC § 2.315)

Implied Warranty of Good and Workmanlike
Performance—Services (DTPA § 17.50(a)(2))

Implied Warranty of Habitability (DTPA § 17.50(a)(2))
Question on Insurance Code Chapter 541

[PJC 102.15 is reserved for expansion.]
Misrepresentations or False Advertising of Policy
Contracts—Insurance (Tex. Ins. Code § 541.051(1))

False Information or Advertising—Insurance
(Tex. Ins. Code § 541.052)

Unfair Insurance Settlement Practices
(Tex. Ins. Code § 541.060)

Misrepresentation—Insurance
(Tex. Ins. Code § 541.061)
[PJC 102.20 is reserved for expansion.]

Question and Instructions on Knowing or Intentional Conduct

Defenses to Deceptive Trade Practices Act and Insurance
Code Chapter 541 Claims (Comment)

Statute of Limitations
(DTPA § 17.565; Tex. Ins. Code § 541.162)

PJC 102.24

PJC 102.25

PJC 102.26

PJC 102.27

PJC 102.28

CHAPTER 103

PJC 103.1

PJC 103.2

PJC 103.3

CHAPTER 104
PJC 104.1

PJC 104.2

PJC 104.3

PJC 104.4

Appendix

Counterclaim— Bad Faith or Harassment (DTPA § 17.50(c);
Tex. Ins. Code ch. 541, subch. D) (Comment)

Prompt Payment of Claims Act— Violation of Insurer's
Duty to Acknowledge Notice of Claim, Commence
Investigation, and Request Information after Receiving
Notice of Claim (Tex. Ins. Code § 542.055)

Prompt Payment of Claims Act— Violation of Insurer's
Duty to Notify Claimant of Acceptance, Rejection, or Need
for More Time after Receiving All Necessary Information
Reasonably Requested from Claimant

(Tex. Ins. Code § 542.056)

Prompt Payment of Claims Act— Violation of Insurer's
Duty to Pay after Notice to Claimant that Insurer Will Pay
All or Part of Claim (Tex. Ins. Code § 542.057)

Prompt Payment of Claims Act— Violation of Insurer’s Duty
to Pay Claim within Sixty Days of Receipt of All Necessary
Information Reasonably Requested from Claimant

(Tex. Ins. Code § 542.058)

GOOD FAITH AND FAIR DEALING

Common-Law Duty of Good Faith and Fair Dealing—
Question and Instruction on Insurance Claim Denial or
Delay in Payment

Duty of Good Faith under the Uniform Commercial Code
(Comment)

Duty of Good Faith by Express Contract (Comment)

FIDUCIARY DUTY

Question and Instruction—Existence of Relationship of Trust
and Confidence

Question and Instruction—Breach of Fiduciary Duty
Defined by Common Law— Burden on Fiduciary

Question and Instruction—Breach of Fiduciary Duty
Defined by Common Law— Burden on Beneficiary

Question and Instruction—Breach of Fiduciary Duty
Defined by Statute or Agreement— Burden on Fiduciary

475

APPENDIX

PJC 104.5

CHAPTER 105

PJC 105.1

PJC 105.2

PJC 105.3

PJC 105.4

PJC 105.5

PJC 105.7

PJC 105.8
PJC 105.9
PJC 105.10
PJC 105.11

PJC 105.12

PJC 105.13

PJC 105.14

PJC 105.15

PJC 105.16

PJC 105.17

476

Question and Instruction—Breach of Fiduciary Duty
Defined by Statute or Agreement— Burden on Beneficiary

FRAUD AND NEGLIGENT MISREPRESENTATION

Question on Common-Law Fraud—Intentional
Misrepresentation

Instruction on Common-Law Fraud—Intentional
Misrepresentation

Definitions of Misrepresentation—Intentional
Misrepresentation

Instruction on Common-Law Fraud—Failure to Disclose
When There Is Duty to Disclose

Question on Statute of Limitations—Common-Law Fraud
[PJC 105.6 is reserved for expansion. ]

Question on Statutory Fraud (Real Estate or Stock

Transaction)

Instruction on Statutory Fraud—Factual Misrepresentation

Instruction on Statutory Fraud—False Promise

Question and Instructions on Benefiting from Statutory Fraud

Question and Instruction on Actual Awareness of Statutory
Fraud

Question and Instructions on Violation of Texas Securities
Act—Factual Misrepresentation

Instruction on Violation of Texas Securities Act—
Material Fact—Prediction or Statement of Belief

Question on Defenses to Violation of Texas Securities Act—
Factual Misrepresentation

Question on Defenses to Violation of Texas Securities Act—
Buyer

Question on Violation of Texas Securities Act—Control-Person
Liability

Question on Defense to Control-Person Liability

PJC 105.18

PJC 105.19

PJC 105.25

PJC 105.26

PJC 105.27

PJC 105.28

PJC 105.29

PJC 105.30

PJC 105.31

PJC 105.32

CHAPTER 106

PJC 106.1

PJC 106.2
PJC 106.3

PJC 106.4

Appendix

Question and Instructions on Violation of Texas Securities
Act—Aiding Violation

Question and Instruction on Negligent Misrepresentation
[PJC 105.20—105.24 are reserved for expansion.]

Question and Instruction on Transfers Fraudulent as to
Present and Future Creditors—Actual Fraud
(Tex. Bus. & Com. Code $ 24.005(a)(1))

Question on Reasonably Equivalent Value—
Constructive Fraud
(Tex. Bus. & Com. Code $8 24.005(a)(2), 24.006(a))

Question on Constructive Fraud
(Tex. Bus. & Com. Code $8 24.005(a)(2), 24.006(a))

Question on Constructive Fraud— Transfer to Insider
(Tex. Bus. & Com. Code $ 24.006(b))

Question and Instruction on Good Faith and Reasonably
Equivalent Value—A ffirmative Defense to Fraudulent
Transfer Based on Actual Fraud

(Tex. Bus. & Com. Code $ 24.009(a))

Question on Affirmative Defense for Insider
(Tex. Bus. & Com. Code $ 24.009(f))

Question on Extinguishment of Cause of Action
(Tex. Bus. & Com. Code $ 24.010)

Remedies for Fraudulent Transfers
(Tex. Bus. & Com. Code § 24.008) (Comment)

INTERFERENCE WITH EXISTING AND PROSPECTIVE CONTRACT

Question and Instruction—Intentional Interference with
Existing Contract

Question—Defense of Legal Justification

Wrongful Interference with Prospective Contractual or
Business Relations (Comment)

Contracts Terminable at Will or on Notice (Comment)

477

APPENDIX

CHAPTER 107

PJC 107.1
PJC 107.2
PJC 107.3

PJC 107.4

PJC 107.5

PJC 107.6
PJC 107.7

PJC 107.8

PJC 107.9

PJC 107.10
PJC 107.11
PJC 107.12

PJC 107.13
PJC 107.14

PJC 107.15
PJC 107.16
PJC 107.17

PJC 107.18
PJC 107.19

PJC 107.20
PJC 107.21

478

EMPLOYMENT
Breach of Employment Agreement (Comment)
Instruction on Good Cause as Defense to Early Discharge

Question on Wrongful Discharge for Refusing to Perform
an Illegal Act

Question and Instruction on Retaliation under Texas
Whistleblower Act

Question and Instruction on Retaliation for Seeking Workers’
Compensation Benefits

Question and Instruction on Unlawful Employment Practices

Question on After-Acquired Evidence of Employee
Misconduct

Instruction on Damages Reduction for After-Acquired
Evidence of Employee Misconduct

Question and Instruction on Retaliation
Instruction on Constructive Discharge
Instruction on Disability

Question and Instruction on Failure to Make Reasonable
Workplace Accommodation

Question and Instruction on Undue Hardship Defense

Question on Good-Faith Effort to Make Reasonable
Workplace Accommodation

Instruction on Sex Discrimination
Instruction on Religious Observance or Practice

Question and Instruction on Defense of Undue Hardship to
Accommodate Religious Observances or Practices

Question Limiting Relief in Unlawful Employment Practices

Question and Instruction on Bona Fide Occupational
Qualification Defense

Question on Harassment

Instruction on Sexual Harassment by Supervisor Involving
Tangible Employment Action (Quid Pro Quo)

PJC 107.22

PJC 107.23

PJC 107.24

PJC 107.25

CHAPTER 108
PJC 108.1
PJC 108.2

PJC 108.3
PJC 108.4
PJC 108.5
PJC 108.6
PJC 108.7
PJC 108.8

CHAPTER 109

PJC 109.1

CHAPTER 110

PJC 110.1
PJC 110.2
PJC 110.3

PJC 110.4

Appendix

Instruction on Harassment by Nonsupervisory Employee
(Hostile Environment)

Instruction on Harassment by Supervisory Employee Not
Involving Tangible Employment Action
(Hostile Environment)

Question and Instruction on Affirmative Defense to
Harassment Where No Tangible Employment Action
Occurred

Question Limiting Relief for Retaliation under Texas
Whistleblower Act

PIERCING THE CORPORATE VEIL
Basic Question

Disregarding the Corporate Fiction in Contract-Related Cases
(Comment)

Instruction on Alter Ego

Instruction on Sham to Perpetrate a Fraud

Instruction on Evasion of Existing Legal Obligation
Instruction on Circumvention of a Statute

Instruction on Protection of Crime or Justification of Wrong

Instruction on Monopoly

CIVIL CONSPIRACY

Question and Instruction on Conspiracy

DEFAMATION, BUSINESS DISPARAGEMENT, AND ÍNVASION OF
PRIVACY

Libel and Slander (Comment on Broad Form)
Question and Instruction on Publication

Question and Instructions on Defamatory Nature of the
Publication

Question and Instruction on Falsity

479

APPENDIX

PJC 110.5 Question and Instruction on Negligence

PJC 110.6 Question and Instructions on Actual Malice

PJC 110.7 Actual Malice in Cases of Qualified Privilege (Comment)
PJC 110.8 Question and Instructions on Defense of Truth

[PJC 110.9—110.14 are reserved for expansion.]

PJC 110.15 Question and Instructions on Business Disparagement

PJC 110.16 Question and Instruction on Intrusion

PJC 110.17 Question and Instruction on Publication of Private Facts

PJC 110.18 Question and Instruction on Invasion of Privacy by
Misappropriation

PJC 110.19 False Light Invasion of Privacy (Comment)
PJC 110.20 Defamation Mitigation Act (Comment)

CHAPTER 111 MISAPPROPRIATION OF TRADE SECRETS
PJC 111.1 Question and Instructions on Existence of Trade Secret
PJC 111.2 Question and Instructions on Trade-Secret Misappropriation

[Chapters 112—114 are reserved for expansion.]

CHAPTER 115 DAMAGES
PJC 115.1 Predicate—Instruction Conditioning Damages Question on
Liability

PJC 115.2 Instruction on Whether Compensatory Damages Are Subject
to Income Taxes (Actions Filed on or after September 1, 2003)

PJC 115.3 Question on Contract Damages

PJC 115.4 Sample Instructions on Direct and Incidental Damages—
Contracts

PJC 115.5 Instructions on Consequential Damages—Contracts

PJC 115.6 Question on Promissory Estoppel—Reliance Damages

PJC 115.7 Question on Quantum Meruit Recovery

PJC 115.8 Defensive Instruction on Mitigation—Contract Damages

480

PJC 115.9

PJC 115.10
PJC 115.11
PJC 115.12

PJC 115.13

PJC 115.14

PJC 115.15
PJC 115.16
PJC 115.17
PJC 115.18
PJC 115.19

PJC 115.20

PJC 115.21

PJC 115.22

PJC 115.24

PJC 115.25

PJC 115.26

PJC 115.27

Appendix

Question and Instruction on Deceptive Trade Practice
Damages

Sample Instructions—Deceptive Trade Practice Damages
Question on Additional Damages—Deceptive Trade Practices

Contribution—Deceptive Trade Practices Act and Insurance
Code Chapter 541 (Comment)

Question and Instruction on Actual Damages under Insurance
Code Chapter 541

Question and Instruction on Actual Damages for Breach of
Duty of Good Faith and Fair Dealing

Remedies for Breach of Fiduciary Duty (Comment)
Question on Profit Disgorgement—Amount of Profit
Question on Fee Forfeiture—Amount of Fee

Question on Actual Damages for Breach of Fiduciary Duty

Question and Instruction on Direct Damages Resulting
from Fraud

Question and Instruction on Consequential Damages Caused
by Fraud

Question and Instruction on Monetary Loss Caused by
Negligent Misrepresentation

Question on Damages for Intentional Interference with
Existing Contract or for Wrongful Interference with
Prospective Contractual Relations

[PJC 115.23 is reserved for expansion.]

Sample Instructions on Direct and Incidental Damages—
Breach of Employment Agreement

Defensive Instruction on Mitigation—Breach of Employment
Agreement Damages

Question and Instruction on Damages for Wrongful Discharge
for Refusing to Perform an Illegal Act

Question and Instructions on Damages for Retaliation under
Texas Whistleblower Act

481

APPENDIX

PJC 115.28

PJC 115.30

PJC 115.31

PJC 115.32

PJC 115.33
PJC 115.34
PJC 115.35
PJC 115.36
PJC 115.37

PJC 115.38
PJC 115.39

PJC 115.40

PJC 115.41

PJC 115.42

PJC 115.43

482

Question and Instruction on Damages—Retaliation for
Seeking Workers’ Compensation Benefits

[PJC 115.29 is reserved for expansion.]

Question and Instruction on Unlawful Employment Practices
Damages

Predicate Question and Instruction on Exemplary Damages
for Unlawful Employment Practices

Question on Employer Liability for Exemplary Damages for
Conduct of Supervisor

Question and Instructions—Defamation General Damages
Question and Instructions—Defamation Special Damages

Question and Instructions—Invasion of Privacy Damages

Proportionate Responsibility

Predicate Question and Instruction on Award of Exemplary
Damages

Question and Instruction on Exemplary Damages

Question and Instruction for Imputing Liability for
Exemplary Damages

Question and Instructions—Securing Execution of
Document by Deception as a Ground for Removing
Limitation on Exemplary Damages

(Tex. Civ. Prac. & Rem. Code § 41.008(c)(11))

Question and Instruction—Fraudulent Destruction,
Removal, Alteration, or Concealment of Writing as a
Ground for Removing Limitation on Exemplary Damages
(Tex. Civ. Prac. & Rem. Code § 41.008(c)(12))

Question and Instructions—Forgery as a Ground for
Removing Limitation on Exemplary Damages
(Tex. Civ. Prac. & Rem. Code $ 41.008(c)(8))

Question and Instructions— Theft as a Ground for
Removing Limitation on Exemplary Damages
(Tex. Civ. Prac. & Rem. Code § 41.008(c)(13))

PJC 115.44

PJC 115.45

PJC 115.46

PJC 115.48

PJC 115.49

PJC 115.54
PJC 115.55

PJC 115.60

CHAPTER 116
PJC 116.1
PJC 116.2

Appendix

Question and Instruction— Commercial (Fiduciary) Bribery
as a Ground for Removing Limitation on Exemplary Damages
(Tex. Civ. Prac. & Rem. Code § 41.008(c)(9))

Question and Instructions—Misapplication of Fiduciary
Property as a Ground for Removing Limitation on Exemplary
Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(10))

Other Conduct of Defendant Authorizing Removal of
Limitation on Exemplary Damages Award (Comment)
[PJC 115.47 is reserved for expansion.]

Question and Instruction on Damages for Misapplication of Trust
Funds under the Texas Construction Trust Funds Act

Question and Instructions on Prompt Payment to Contractors
and Subcontractors Damages
[PJC 115.50—115.53 are reserved for expansion. ]
Question on Trade-Secret Misappropriation Damages
Sample Instructions on Actual Damages—Trade-Secret
Misappropriation
[PJC 115.56—115.59 are reserved for expansion. ]

Question on Attorney’s Fees

PRESERVATION OF CHARGE ERROR
Preservation of Charge Error (Comment)

Broad-Form Issues and the Castee/ Doctrine (Comment)

Contents of

TEXAS PATTERN JURY CHARGES—FAMILY & PROBATE (2020 Ed.)

CHAPTER 200
PJC 200.1
PJC 200.2
PJC 200.3

ADMONITORY INSTRUCTIONS
Instructions to Jury Panel before Voir Dire Examination
Instructions to Jury after Jury Selection

Charge of the Court

483

APPENDIX

PJC 200.4
PJC 200.5
PJC 200.6
PJC 200.7
PJC 200.8
PJC 200.9
PJC 200.10
PJC 200.11

PJC 200.12

CHAPTER 201
PJC 201.1
PJC 201.2
PJC 201.3
PJC 201.4

CHAPTER 202
PJC 202.1
PJC 202.2
PJC 202.3
PJC 202.4
PJC 202.5
PJC 202.6
PJC 202.7
PJC 202.8
PJC 202.9

PJC 202.10

484

Additional Instruction for Bifurcated Trial
Instructions to Jury after Verdict

Instruction to Jury If Permitted to Separate
Instruction If Jury Disagrees about Testimony
Circumstantial Evidence (Optional)
Instructions to Deadlocked Jury
Privilege—Generally No Inference

Fifth Amendment Privilege—Adverse Inference May Be
Considered

Instruction on Spoliation

DISSOLUTION OF MARRIAGE
Divorce

Annulment

Void Marriage

Existence of Informal Marriage

CHARACTERIZATION OF PROPERTY
Separate and Community Property
Inception of Title

Gift, Devise, and Descent

Tracing

Property Acquired on Credit

Property with Mixed Characterization
Premarital Agreement

Partition or Exchange Agreement

Agreement Concerning Income or Property Derived from
Separate Property

Agreement to Convert Separate Property to Community
Property

PJC 202.11

PJC 202.12

PJC 202.13
PJC 202.14
PJC 202.15

CHAPTER 203
PJC 203.1
PJC 203.2
PJC 203.3

CHAPTER 204
PJC 204.1
PJC 204.2
PJC 204.3

CHAPTER 205
PJC 205.1
PJC 205.2
PJC 205.3

PJC 205.4

CHAPTER 206
PJC 206.1
PJC 206.2
PJC 206.3
PJC 206.4

Appendix

Separate Property—One Party Claiming Separate Interest
(Question)

Separate Property— Both Parties Claiming Separate Interests
(Question)

Property Division—Advisory Questions (Comment)
Management, Control, and Disposition of Marital Property

Personal and Marital Property Liability

VALUATION OF PROPERTY
Value
Factors to Be Excluded for Valuation of Business

Value of Property (Question)

REIMBURSEMENT
Reimbursement
Reimbursement—Advisory Questions (Comment)

Reimbursement— Separate Trials (Comment)

DISREGARDING CORPORATE FORM
Mere Tool or Business Conduit (Alter Ego)
Other Unfair Device

Disregarding Corporate Identity of Corporation Owned
Entirely by Spouses (Question)

Disregarding Corporate Identity of Corporation—
Additional Instructions and Questions (Comment)

FRAUD—DISSOLUTION OF MARRIAGE

Confidence and Trust Relationship between Spouses
Actual Fraud by Spouse against Community Estate
Actual Fraud by Spouse against Separate Estate

Constructive Fraud by Spouse against Community Estate

485

APPENDIX

PJC 206.5

CHAPTER 207

PJC 207.1

PJC 207.2
PJC 207.3
PJC 207.4

PJC 207.5

CHAPTER 215

PJC 215.1
PJC 215.2
PJC 215.3

PJC 215.4

PJC 215.6
PJC 215.7
PJC 215.8
PJC 215.9
PJC 215.10
PJC 215.11
PJC 215.12
PJC 215.13

486

Fraud Action against Nonspouse Party

ENFORCEABILITY OF PROPERTY AGREEMENTS

Enforceability of Property Agreements—Separate Trials
(Comment)

Enforceability of Premarital Agreement
Enforceability of Partition or Exchange Agreement

Enforceability of Agreement Concerning Income or
Property Derived from Separate Property

Enforceability of Agreement to Convert Separate Property
to Community Property

[Chapters 208—214 are reserved for expansion. ]

DEFINITIONS AND INSTRUCTIONS— SUITS AFFECTING THE
PARENT-CHILD RELATIONSHIP

Best Interest of Child
Evidence of Abusive Physical Force or Sexual Abuse

Evidence of Abuse or Neglect—Joint Managing
Conservatorship

History or Pattern of Family Violence, History or Pattern of
Child Abuse or Neglect, or Protective Order
[PJC 215.5 is reserved for expansion.]

Rights of Parent Appointed Conservator

No Discrimination Based on Gender or Marital Status
Preference for Appointment of Parent as Managing Conservator
Joint Managing Conservators

Best Interest of Child—Joint Managing Conservatorship

Sole Managing Conservator— Parent

Managing Conservator—Nonparent

Possessory Conservator

PJC 215.14

CHAPTER 216
PJC 216.1
PJC 216.2
PJC 216.3
PJC 216.4

PJC 216.5

CHAPTER 217

PJC 217.1

PJC 217.2

PJC 217.3

PJC 217.4

PJC 217.5

PJC 217.6

PJC 217.7

CHAPTER 218
PJC 218.1
PJC 218.2

Appendix

Preference for Appointment of Parent as Managing
Conservator— Voluntary Relinquishment of Custody
to Nonparent

CONSERVATORSHIP AND SUPPORT—ORIGINAL SUITS
Sole or Joint Managing Conservatorship

Sole Managing Conservatorship

Possessory Conservatorship Contested

Grandparental Possession or Access—Original Suit
(Comment)

Terms and Conditions of Access, Support, and Conservatorship
(Comment)

MODIFICATION OF CONSERVATORSHIP AND SUPPORT

Modification of Sole Managing Conservatorship to Another
Sole Managing Conservator

Modification of Sole Managing Conservatorship to Joint
Managing Conservatorship

Modification of Joint Managing Conservatorship to Sole
Managing Conservatorship

Modification of Conservatorship—Right to Designate Primary
Residence

Modification of Conservatorship—Multiple Parties Seeking
Conservatorship (Comment)

Modification—Grandparental Possession or Access
(Comment)

Modification of Terms and Conditions of Access, Support, and
Conservatorship (Comment)

TERMINATION OF PARENT-CHILD RELATIONSHIP
Termination of Parent-Child Relationship

Termination of Parent-Child Relationship—lInability to Care
for Child

487

APPENDIX

PJC 218.3

PJC 218.4

PJC 218.5

CHAPTER 230
PJC 230.1
PJC 230.2
PJC 230.3
PJC 230.4
PJC 230.5
PJC 230.6
PJC 230.7
PJC 230.8
PJC 230.9
PJC 230.10

CHAPTER 232

PJC 232.1

PJC 2322

PJC 232.3
PJC 232.4

488

Termination of Parent-Child Relationship—Prior Denial of

Termination

Conservatorship Issues in Conjunction with Termination

(Comment)

Termination by Nongenetic Father (Comment)

[Chapters 219—229 are reserved for expansion.]

WILL CONTESTS

Burden of Proof (Comment)
Testamentary Capacity to Execute Will
Requirements of Will

Holographic Will

Undue Influence

Fraud— Execution of Will

Proponent in Default

Alteration of Attested Will

Revocation of Will

Forfeiture Clause

[Chapter 231 is reserved for expansion.]

BREACH OF DUTY BY PERSONAL REPRESENTATIVE

Breach of Duty by Personal Representative—
Other Than Self-Dealing

Breach of Duty by Personal Representative—
Self-Dealing

Remedies for Breach of Fiduciary Duty (Comment)

Actual Damages for Breach of Duty by Personal
Representative

CHAPTER 233

PJC 233.1

PJC 233.2

CHAPTER 235

PJC 235.1
PJC 235.2
PJC 235.3
PJC 235.4
PJC 235.5
PJC 235.6
PJC 235.7
PJC 235.8
PJC 235.9
PJC 235.10

PJC 235.11

PJC 235.12

PJC 235.13
PJC 235.14
PJC 235.15
PJC 235.16
PJC 235.17
PJC 235.18
PJC 235.19
PJC 235.20

Appendix

REMOVAL OF PERSONAL REPRESENTATIVE

Removal of Personal Representative—Dependent
Administration

Removal of Personal Representative—Independent
Administration

[Chapter 234 is reserved for expansion.]

EXPRESS TRUSTS

Mental Capacity to Create Inter Vivos Trust

Intention to Create Trust

Undue Influence

Forgery

Revocation of Trust

Modification or Amendment of Trust

Acceptance of Trust by Trustee

Forfeiture Clause

Breach of Duty by Trustee—Other Than Self-Dealing

Breach of Duty by Trustee—Self-Dealing—Duties Not
Modified or Eliminated by Trust

Breach of Duty by Trustee—Self-Dealing—Duties
Modified But Not Eliminated by Trust

Breach of Duty by Trustee—Self-Dealing—Duty of
Loyalty Eliminated

Remedies for Breach of Fiduciary Duty (Comment)

Actual Damages for Breach of Trust

Exculpatory Clause

Removal of Trustee

Liability of Cotrustees—Not Modified by Document
Liability of Successor Trustee—Not Modified by Document
Third-Party Liability

Release of Liability by Beneficiary

489

APPENDIX

PJC 235.21 Limitations

[Chapters 236—239 are reserved for expansion.]

CHAPTER 240 GUARDIANSHIP OF ADULT
PJC 240.1 Purpose of Guardianship (Comment)
PJC 240.2 Incapacity
PJC 240.3 Lack of Capacity to Care for Self (Guardianship of the Person)

PJC 240.4 Lack of Capacity to Manage Property (Guardianship of the
Estate)

PJC 240.5 Supports and Services (Guardianship of the Person)
PJC 240.6 Supports and Services (Guardianship of the Estate)
PJC 240.7 Alternatives to Guardianship (Guardianship of the Person)
PJC 240.8 Alternatives to Guardianship (Guardianship of the Estate)
PJC 240.9 Best Interest of Proposed Ward
PJC 240.10 Protection of the Person
PJC 240.11 Protection of the Estate
PJC 240.12 Qualification of Proposed Guardian of the Person
PJC 240.13 Qualification of Proposed Guardian of the Estate
PJC 240.14 Best Qualified Proposed Guardian of the Person
PJC 240.15 Best Qualified Proposed Guardian of the Estate
PJC 240.16 Restoration of Capacity—The Person
PJC 240.17 Restoration of Capacity—The Estate
PJC 240.18 Modification of Guardianship (Comment)
[PJC 240.19 is reserved for expansion.]
PJC 240.20 Removal of Guardian

[Chapters 241—244 are reserved for expansion.]

CHAPTER 245 INVOLUNTARY COMMITMENT

PJC 245.1 Temporary Inpatient Mental Health Services

490

Appendix

PJC 245.2 Extended Inpatient Mental Health Services
PJC 245.3 Chemical Dependency Treatment

[Chapters 246—249 are reserved for expansion.]

CHAPTER 250 ATTORNEY'S FEES
PJC 250.1 Attorney's Fees—Family
PJC 250.2 Attorney's Fees—Family— Advisory Questions (Comment)
PJC 250.3 Attorney's Fees and Costs—Will Prosecution or Defense
PJC 250.4 Attorney's Fees—Trust
PJC 250.5 Attorney's Fees—Guardianship—A pplication

PJC 250.6 Attorney’s Fees—Guardianship—Representation of Ward in
Restoration or Modification

PJC 250.7 Attorney’s Fees and Costs—Defense for Removal of
Independent Personal Representative

PJC 250.8 Attorney’s Fees—Guardianship—Reimbursement of
Attorney’s Fees

CHAPTER 251 PRESERVATION OF CHARGE ERROR
PJC 251.1 Preservation of Charge Error (Comment)
PJC 251.2 Broad-Form Issues and the Casteel Doctrine (Comment)

Contents of
TEXAS PATTERN JURY CHARGES—OIL & GAS (2020 Ed.)

CHAPTER 300 ADMONITORY INSTRUCTIONS
PJC 300.1 Instructions to Jury Panel before Voir Dire Examination
PJC 300.2 Instructions to Jury after Jury Selection
PJC 300.3 Charge of the Court
PJC 300.4 Additional Instruction for Bifurcated Trial

PJC 300.5 Instructions to Jury after Verdict

491

APPENDIX

PJC 300.6 Instruction to Jury If Permitted to Separate
PJC 300.7 Instruction If Jury Disagrees about Testimony
PJC 300.8 Circumstantial Evidence (Optional)

PJC 300.9 Instructions to Deadlocked Jury

PJC 300.10 Privilege—Generally No Inference

PJC 300.11 Fifth Amendment Privilege—Adverse Inference May Be
Considered

PJC 300.12 Parallel Theories on Damages
PJC 300.13 Proximate Cause

PJC 300.14 Instruction on Spoliation

CHAPTER 301 ADVERSE POSSESSION
PJC 301.1 Adverse Possession (Comment)

PJC 301.2 Question and Instructions on Adverse Possession—
Three-Year Limitations Period

PJC 301.3 Question and Instructions on Adverse Possession—
Five-Year Limitations Period

PJC 301.4 Question and Instructions on Adverse Possession—
Ten-Year Limitations Period

PJC 301.5 Question and Instructions on Adverse Possession—
Twenty-Five- Year Limitations Period

PJC 301.6 Question and Instructions on Adverse Possession with

Recorded Instrument—Twenty-Five- Year
Limitations Period

CHAPTER 302 IMPROPER USE OF REAL PROPERTY

PJC 302.1 Injury to Real Property from Oil and Gas Operations
(Comment)

492

PJC 302.2

PJC 302.3
PJC 302.4

PJC 302.5

PJC 302.8

PJC 302.9

CHAPTER 303
PJC 303.1
PJC 303.2
PJC 303.3
PJC 303.4

PJC 303.5

PJC 303.6

PJC 303.7

PJC 303.8

PJC 303.9

PJC 303.10

PJC 303.11

Appendix

Question and Instruction on Unreasonable Use of Surface
Estate

Question and Instruction on Accommodation Doctrine
Question and Instruction on Trespass

Question and Instruction on Affirmative Good-Faith
Defense to Trespass

[PJC 302.6 and 302.7 are reserved for expansion.]
Question and Instruction on Statutory Waste

Question and Instruction on Reasonably Prudent Operator Defense
to Statutory Waste Claim

LESSOR-LESSEE ISSUES

Claims for Breach of Lease Provisions (Comment)
Question on Breach of Express Pooling Provision
Question and Instruction on Good-Faith Pooling
Question on Breach of Express Royalty Provision

Question on Untimely Payment of Proceeds of Production
under Natural Resources Code

Question on Location of Sale

Question and Instruction on Implied Duty to Reasonably
Market Production (Proceeds/Amount Realized Royalty
Provision)

Question and Instructions on Breach of Express Market
Value Royalty Provision

Question and Instruction on Unreasonable Deduction of
Postproduction Costs

Implied Covenants (Comment)

Question and Instructions on Breach of Implied Covenant to
Protect against Drainage

493

APPENDIX

PJC 303.12

PJC 303.13

PJC 303.14

PJC 303.15

PJC 303.16

PJC 303.17

PJC 303.18

PJC 303.19

PJC 303.20

PJC 303.21

PJC 303.22

PJC 303.23

PJC 303.24

PJC 303.25

CHAPTER 304

PJC 304.1

PJC 304.2

494

Question and Instruction on Breach of Implied Covenant to
Develop

Lease Termination (Comment)
Question on Failure to Tender Delay Rental Payment

Question and Instruction on Failure to Commence Operations
before End of Primary Term

Question and Instruction on Failure to Commence Operations
after Cessation of Production

Question and Instruction on Failure to Prosecute Operations
without Cessation

Question and Instruction on Failure to Commence Operations
after Completion of Dry Hole

Question on Cessation of Production

Question and Instructions on Cessation of Production in
Paying Quantities

Question on Date of Cessation of Production

Question and Instruction on Temporary Cessation of
Production

Question on Failure to Tender Shut-In

Question and Instruction on Determining Whether Well
Qualifies as Shut-In Well

Question on Force Majeure

EXECUTIVE RIGHTS
Breach of Executive Rights Duty (Comment)

Question and Instruction on Breach of Executive Rights
Duty

CHAPTER 305

PJC 305.1

PJC 305.2

PJC 305.3

PJC 305.4

PJC 305.5

PJC 305.6

PJC 305.7

PJC 305.8

PJC 305.9

PJC 305.10

PJC 305.11

PJC 305.12

PJC 305.13

PJC 305.14

PJC 305.15

PJC 305.19

PJC 305.20

PJC 305.21

PJC 305.22

PJC 305.23

PJC 305.24

OIL AND GAS INDUSTRY AGREEMENTS

Oil and Gas Industry Contracts (Comment)
Basic Question— Existence

Basic Question— Compliance (Non-JOA)
Instruction on Formation of Agreement
Instruction on Authority

Instruction on Ratification

Conditions Precedent (Comment)

Court's Construction of Provision of Agreement
(Comment)

Instruction on Ambiguous Provisions
Trade Custom (Comment)
Instruction on Time of Compliance

Instruction on Offer and Acceptance

Instruction on Withdrawal or Revocation of Offer

Instruction on Price

Consideration (Comment)

[PJC 305.16—305.18 are reserved for expansion.]

Appendix

Question and Instruction on Meaning of Ambiguous Provisions

Question and Instruction on Reformation as an Affirmative

Cause of Action

Question on Main Purpose Doctrine
Third-Party Beneficiaries (Comment)
Question on Promissory Estoppel

Question and Instruction on Quantum Meruit

495

APPENDIX

PJC 305.25 Money Had and Received (Comment)
PJC 305.26 Unjust Enrichment (Comment)

PJC 305.27 Basic Question and Instructions on Breach of
Joint Operating Agreement—Compliance

PJC 305.28 Questions and Instructions on Breach by Operator under
Joint Operating Agreement Exculpatory Provision

[Chapters 306—311 are reserved for expansion.]

CHAPTER 312 DEFENSES
PJC 312.1 Defenses— Basic Question

PJC 312.2 Defenses—Instruction on Plaintiff s Material Breach
(Failure of Consideration)

PJC 312.3 Defenses—Instruction on Anticipatory Repudiation
PJC 312.4 Defenses—Instruction on Waiver

PJC 312.5 Defenses—Instruction on Equitable Estoppel

PJC 312.6 Defenses—Instruction on Duress

PJC 312.7 Defenses—Instruction on Undue Influence

PJC 312.8 Defenses—Instruction on Mutual Mistake of Fact

PJC 312.9 Defenses—Instruction on Mutual Mistake—Scrivener’s
Error

PJC 312.10 Defenses—Instruction on Novation

PJC 312.11 Defenses—Instruction on Modification

PJC 312.12 Defenses—Instruction on Accord and Satisfaction
PJC 312.13 Defenses—Instruction on Mental Capacity
PJC 312.14 Defenses—Statute of Frauds (Comment)

PJC 312.15 Question on Statute of Limitations—Discovery Rule

496

Appendix

PJC 312.16 Question and Instruction on Repudiation of Title

PJC 312.17 Question and Instruction on Statutory Defense to
Withholding of Payments and Prejudgment Interest

PJC 312.18 Question and Instruction on Bona Fide Purchaser Defense

CHAPTER 313 DAMAGES
PJC 313.1 Predicate—Instruction Conditioning Damages Questions
on Liability
PJC 313.2 Instruction on Whether Compensatory Damages Are

Subject to Income Taxes (Actions Filed on or after
September 1, 2003)

PJC 313.3 Question and Instruction on Damages for Trespass Resulting
in Production of Minerals

PJC 313.4 Question on Reduction of Damages Resulting from
Good-Faith Trespass

PJC 313.5 Monetary Damages Recoverable for Claims Involving Physical
Injury to Real Property (Other Than by Production of Minerals)
(Comment)

PJC 313.6 Question on Frequency and Duration of Injury

PJC 313.7 Question and Instruction on Cost to Repair, Fix, or Restore
Temporary Injury

PJC 313.8 Question and Instruction on Diminution in Market Value

PJC 313.9 Question and Instruction on Damages for Breach of
Express Pooling Provisions and Implied Duty to Pool in
Good Faith

PJC 313.10 Question and Instruction on Damages for Breach of
Express Royalty Provision

PJC 313.11 Question and Instruction on Damages for Breach of
Implied Duty to Reasonably Market Production

PJC 313.12 Question and Instruction on Damages for Breach of
Express Market Value Royalty Provision

497

APPENDIX

PJC 313.13

PJC 313.14

PJC 313.15

PJC 313.16

PJC 313.17
PJC 313.18

PJC 313.19
PJC 313.20
PJC 313.21

PJC 313.22

PJC 313.33

CHAPTER 314
PJC 314.1

PJC 314.2

498

Question and Instruction on Damages for Unreasonable
Deductions

Question and Instruction on Drainage Damages

Question and Instruction on Damages for Breach of
Implied Covenant to Develop

Question and Instruction on Actual Damages for Breach
of Executive Rights Duty

Question on Contract Damages

Sample Instructions on Direct and Incidental Damages—
Contracts

Instructions on Consequential Damages— Contracts
Question on Promissory Estoppel—Reliance Damages
Question on Quantum Meruit Recovery

Defensive Instruction on Mitigation—Contract Damages

[PJC 313.23—313.32 are reserved for expansion.]

Question on Attorney's Fees

PRESERVATION OF CHARGE ERROR
Preservation of Charge Error (Comment)

Broad-Form Issues and the Castee/ Doctrine (Comment)

STATUTES AND RULES CITED

[Decimal references are to PJC numbers.]

Texas Revised Civil Statutes

Art. 8306, 820 ..............00004. 19.1

AV Los ctoberbeo toe onis 5.5
STIS o eee eee ere eer 5.5

Art. 8309, 8 lb... eee 17.7

dO ee ee ee TERR NIE 5.5
OE cnr NAMEN NOEL 5.6

Texas Business & Commerce Code

8$17.46(5)24). o.oo ee eee. ch. 15 note

Texas Civil Practice & Remedies Code

818.091(b) ......... 28.2, 29.2, 30.2, 31.2
588533 001—017... cbcete ee ted 4.1, 43
833.001 ..... 28.3-28.5, 28.11, 29.3-29.6,

30.3, 31.3, 31.4
§ 33002 Sc scale cup acas en wantin 4.1
5390] CLR aoaaa aaan 4.3
833.002(2)0).... ce 43
"ect MANENTE. 4.1, 43
§ 33.003(b) ae RTT PETRI 4.1, 43
"ES MMC 4.1, 43
CECI RETIRER TERN NT 4.1, 43
§ 39,011) ; roe siste ck 4.1, 43
$3321106). oL rct i 4.1, 43
$3301... os eercere ra edo eurer üe 4.1
§ 33.013(C)(1). 0... cece cece eee e eee 4.1
833.013(0)0).... eene 4
ctor PME 4.1,44
§ 33.016(0) vricaniccocnadechetouas 43
841.001(5) ......... 7.12, 28.7, 29.7, 30.4
§ 41.001(7)..... 4.2, 7.11, 28.7, 29.7, 30.4

§ 41.001(11).... 4.2, 7.11, 28.7, 29.7, 30.4

841.002... 29.7, 30.4
§ 41.003 sacl adit cee incre AN
§ 41.003 0.00. cece eee eee eee 23117919
841.003(2)...... 4.2, 11.9, 28.7, 29.7, 30.4
841003((1) ..... csse 741
§ 41.003(a)(2) -aoaaa anaana. 4a, 7il
§ 41.003(a)(3) ... csse 741
8 41.003(d). ..... 4325 $31 T4. 327.
29.7, 30.4

§ 41 O06 oca ER ERES 7.12
841.004(2).... c eee cece eee 42, 7.11
841.005(3)....... eee 7.13, 10.14
§ 41.005(b).. 0... eee eee 7.13, 10.14
§ 41.005(c).. 0. cece eee eee ee 7.13, 10.14
841.006........s.. 7.12, 28.7, 29.7, 30.4
§ 41.007... 7.12, 28.7, 29.7, 30.4
841.008(2)........... 75,79, 2035-285,
29.3-29.6, 30.3

841.008(b)....... 7.5, 7.9, 28.7, 29.7, 30.4
§ 41.008(c)...... 4.2, 7.12, 28.7, 29.7, 30.4
841.008(d)......... 7.12, 28.7, 29.7, 30.4

499

STATUTES AND RULES CITED

Texas Civil Practice & Remedies Code— § 71.010 ...... 7.12, 28.7, 29.7, 29.8, 30.4
continued § 71.010(b). 1.2... eseop erne itsa 29.5
§ 41.009....... LA, 7.11, 7,12; 11.9, 28.7, 971021... RR 29.7, 30.3, 30.4
29.7, 30.4 8 75.002(h). reser ees 11,2, 12,5, 12,0
$41.0105........LLssus. 28.3, 28.5, 30.3 § 124.001 ..... eee eee eee 6.1, 6.3
S4L011(3) «i. pott RR noes 3.12 $:1235:0015:...5 opo poets ee Rp 12,3
88 71.001—012 .......... 29.3—29.6, 30.3 $8 125.061—063...........luusss. 12,3
$ 71.002(b) cp pRReRERR RR 4.1 $8134.001—005.........ls suus. Xo og
§ T1005 E RF eeRR CURE 29.3 $134.003(3) crs siie eee eee To
§ 712009. pcs cngeeaepeengeneagbes 29.8 § 134.005(a)(1).... 2. eee eee 35. Fi
Texas Family Code
9.22401]. rcu CER I DERI 26.2 $:3.002. crx EUER ERES OC Ires 21.3
§ 24012). irre REO eset anaes 26.2 9:9 103. erene eat oases Cars eo 203
$3,001(3) 1... ron 28.3 § 151.001(5)...... 00... ee. 28.5, 28.6

Texas Finance Code

§ 304.102...... 12.5, 12.6, 30.3, 31,3, 314

§ 304.1045 2.2... 1,5, 459, TRS,
28.3—28.6, 28.11, 29.3—29.6

Texas Government Code

$607056. iecore RR Re rm TF2

§§ 2001.171—178 0.0.00. ...0 0008. 15.1

Texas Health & Safety Code

9.34310 TT, 4 co eos 12,5. 12.0 $343.013(b) icc. cece es 12.5, 12.6
Texas Labor Code

Ch; Ol ereer eevee oe Bekah Asien Bat 10.5 § 401.011(23).............. 23.11, 23,15
Chi OT ioiii RE era 10.1 $401.011(24) ........Luusus. 23.9, 23.16
§ 401.011(12) ...... 10.5, 17.1, 17,6, 177; § 401.011(26)................ 174, 1

19.1, 19.2, 26.1 § 401.011(30).......... 23.7-23.9, 23.14
§ 401.011012)(A).... 0.22.00... eee 17:7 § 401.011(34)........ 0.0.0.2 0008. 19.1
§ 401.011012)(B).. 2.2... 0.0.0.0... 17.8 § 401.011(36)................000. 19.1
$401.011(14) ... 0... ee. 26.3-26.5 § 401.011(43)............0.. 22,2, 23.12
$401.011(15) .......... 0... eee 15.3 $401.012 ............ 00.006. 10.5, 16.1
§ 401.011(16) .... 23.1—23.3, 23.11, 23.15 § 401.012(b)(1).. 2. eee 17.3

500

8 406.032(1)(A)
8 406.032(1)(B)
8 406.032(1)(C)
8 406.032(1)(D)
8 406.032(1)(E)

$8406.161—165........Lssuseuuss.
23.4—23.6, 23.13

8 408.142 .... 23.9, 23.16, 24.1, 24.2, 24.4

Statutes and Rules Cited

8408.144(c). ..... sss. 23.4-23.6, 23.13
CETT NR TORRES 24.6
8 408.161 i cese 21.1, 25.1, 25.3
8408.16016) 5 rrr EE ws 25.3
8408.161(8) (D) 2cexesseeit err ei 25.4
§ 408.161(a)(2)-(4) ..... cece ee eee 25.2
§ 408.161 (a)(2)-(5) ....... s... 261953
8408.161(3)(5) ..... sse 25.5
§ 408.161(a)(6) ..... cse 25.6
§ 408.161(a)(7) oo... eee 25.7
§ 408.161(b). 0.0... cece cece ee ee eee 25.3
BAUR 188 ocean secco tis 26.2-26.5
8:408. 183 EST). cest pee 26.5
§ 408.221 nanaonan 274
§ 408.221(a). s here ber pb nes 211
TO SPALTE RE TUTTO ETT. nud
§ 409.001 ius ee esa ore biben 20.2
§ 409.001(a)(2) ..... se 20.2
8400. DOT)... on usi pRSEG aS 19.3
§ 409.002 NND IRR ROUEN 20.2
8409.002)..... csse 20.3
§ 409.003.0000. eee cece ee eee ees 20.4
§ 409.004.000.000. cece eee 20.4, 20.5
§ 409.005 cite bier Ere PCR dS 20.4
§ 409.007... cesses 20.3-20.5
§ 409.008 . cawdsneoloeesacnesiaees 20.4
§ 409.009. esee serere nr I ve 18.9
MOG Sse io aec a 20.1
8409.021(2)...... cc 20.1
CERA NERO RT CE ETT OE 20.1
§ 410.204. 6S cet CER NOE 15.2
6410 20M) sxc copy EE aaan. 15.2
§ 410.251 ces arate eae eee 15.1
8410.302(b). ...... sss. 21.1, 25.1, 242
88410.303—304. .... Less 15.1
8410,305... cioe ezxe es 15.1, 19.2
8410.304(3)..... c eee cece ee eee 15.2
§ 410.306.0000. eee eee 23.7, 23.8
8410.306()..... eee 23.9
§ 502.067 secet eteott ire be Pr 18.8
8503067 scevievedeexes etr dedu 18.8
§ S080 87 veces cen nshewesen 18.8

501

STATUTES AND RULES CITED

Texas Penal Code

$ 1L07(a3(9) ..... sese ese p § 31201(4). Lieber beth oet I To
§ 1.07(a)(35) ...... lessen. LI § 31.01(5)...... eee eee eee T
§ 1.07(a)(39) ..... llle. dul 8.3]1.03(8) 5i eR eee rc e Tub
SO; OS see cer se dr t E ed 1 § 31.01(b)... 0. eee eee L3
$6.03(3) ... cece eee cee ee Ta § 31.03(b)(1).. 2... E E Ta
CTI, cinis tbe es aita ap acr dvo s 6.1 $31.04 EE cc eee ee 7.3
8:22:10]. e eee a xr er ER e ats 6.6 SILON) 5o ed ee x cte Tu
$31.01(1) ........ 0. eee eee 7.2, 13 § 31.04(a)(1). ooann eee 73
§ 31012) 7. rure: Pm baw kbd Eh IS 7.2 8490] Le bubko eee mee Gees exe 8
S$3LO01I(3) 45i ess ce e RE RES 7.3 $49.04 2. cc eee AI
Texas Property Code
5-22:00T siete dada hones 11.2

Texas Transportation Code

8521021..... sss 10.12
8591.4 R(B) aoan Zea e ete reos 10.12
§ 5XL459(d). iu eke x Eiern eren 10.12
BRAS 059 ccce ceicet Glee sa iit 5.]

8:545: 000 (4) es sre ene ci e 5.1
8545108 .... csse 5.1
E SA5 re ONE 5.1
§ 545.402 onnon. 5.1

Texas Administrative Code

Title 28

S PAIE rnane ipie 20.1
7L E EEE E 20.1
ETE. hse Sen rier 20.1
se gel od Ge ta oe ks 22.4
OD APER ea a A 23.12
5:128 JG) iecit e erras 225
8128.11) .. esee 22
§ 128.1(b) NER TURON TE 22.3
8 1283(0-().. oes rede eer heh 213
OFLI 0: ee en a 123 2096
§ 128.3(g) ... cese 22.1
CADIT MERCEDE 22.3
OBDI E TE 22.3
O62 3 EM ran 22.3

Od v aaa 22.3
quer erein i oe ree aera pe yee 23.13
§ 130.101(8) 0.2... cece cece ee ee eee 24.6
§ 150.108 51 Lope beesnbackeoes 24.1
§ 130.102(b) ENERO 242
8130.102(6) ...... sees 24.2244
§ 130.102(d).... 0... eee eee 24.4, 24.5
§ 130.102(e) .... c sse 24.5
5-130. 16200) sso ccc deve rr rei og 24.5
§ 130.106(c) ..... c cese 24.6
REIN uu oreet operta 26.3
SEVE 26.3-26.5
EIA E E A 26.3
SEA 26.4
REUS PEETA I T, 26.5

Statutes and Rules Cited

Texas Rules of Civil Procedure

Rule 226a ......... 1.1-1.5, 1.9, 42, 7.11,

7.12, 10.14
Rule 279 eee tetuer eter 32.1
Rule 279 cae e eut 32.1
Rule 2945 etes et eee eae 32.1
Rule276 rem eeehe ek tito es 32.1

Rule 277........ 3.1, 4.1, 4.3, 6.1, 6.4, 6.5,
7.2—1.4, 26.1, 28.1, 28.3—28.5,

25, 11, 29.1, 29.3-29.6,

30.1, 30.3, 31.1, 31,3, 314

RUG 278, c. cust gae eared dave 32.1
Rule 279. x sse Lace tp 32.1
Rüle284. es ea ee erae 1.6
Rule 287... soa eer eds L7
Rüle 295, ...ssssns a e cse 7.8

Texas Rules of Evidence

Rule 513(d)............ 02.00.0008. 1.10

Title 49

Miscellaneous

Dramshop Act: 5.5, 5.6, 10.6; see chapter 2
of Texas Alcoholic Beverage Code

Workers’ Compensation Act: 4.1, 4.3, 10.1,
10.5, chs. 15—27, 29.7, 30.4; see sec-
tion 408.001 of Texas Labor Code

503

CASES CITED

[Decimal references are to PJC numbers.]

Adams v. Valley Federal Credit Union, 1.8

Aetna Casualty & Surety Co. v. Burris, 19.1

Aetna Casualty & Surety Co. v. Estate of
Thomas, 16.4

Aetna Casualty & Surety Co. v. Shreve,
18.8, 19.1

Aetna Insurance Co. v. Hart, 19.1

Agar Corp. v. Electro Circuits International,
7.8

Aguirre v. Vasquez, 17.7

Alamo National Bank v. Kraus, 29.7, 30.4

Alaniz v. Jones & Neuse, Inc., 32.1

Alexander v. Lockheed Martin Corp., 21.1

Allen v. Albin, 13.1

Allen v. Virginia Hill Water Supply Corp.,
11.2

Allstate Insurance Co. v. Scott, 16.1, 16.2

Always Auto Group, Ltd. v. Walters, 10.12

American Casualty Co. of Reading,
Pennsylvania v. Martin, 20.2

American Electric Power Co. v.
Connecticut, 12.3

American Jet, Inc. v. Leyendecker, 3.2

American Motorists Insurance Co. v. Fodge,
21,1

American States Insurance Co. v. Garza,
16.6

Anchor Casualty Co. v. Hartsfield, 16.1,
16.2

Anchor Casualty Co. v. Patterson, 18.7

Archuleta v. International Insurance Co.,
10.4

Argonaut Underwriters Insurance Co. v.
Byerly, 18.8

Armellini Express Lines of Florida v.
Ansley, 28.9

Arrow Marble LLC v. Estate of Killion, 7.8

Arthur Andersen & Co. v. Perry Equipment
Corp., 7.5

Ashley v. Hawkins, 14.1

Austin Nursing Center, Inc. v. Lovato, 30.3

A.V. [In re], 32.2

Ayco Development Corp. v. G.E.T. Service
Co., 10.11

Bailey v. American General Insurance Co.,
13,1, 19.1, 26.1

Bailey v. Southern Pacific Transportation
Co., 29.3

Baker v. Cook Children's Physician
Network, 17.1

Balderas-Ramirez v. Felder, 31.3

Barnes v. Mathis, 11.2, 12.1, 12.2

Barnes v. United Parcel Service, Inc., 17.2

Barron v. Standard Accident Insurance Co.,
16.5

Battaglia v. Alexander, 29.3

Baxter v. Palmigiano, 1.11

Beaumont v. Basham, 7.5-7.7, 7.10

Bedford v. Moore, 10.12

Bedgood v. Madalin, 30.3

Benge v. Williams, 32.2

Bennett v. Reynolds, 7.13, 10.14

Benoit v. Wilson, 5.1

Bertrand v. Mutual Motor Co., 10.10

Biggs v. United States Fire Insurance Co.,
17:3

Bissett v. Texas Employers’ Insurance
Ass’n, 17.7

B.L.D. [In re], 32.2

Blount v. Bordens, Inc., 1.8, 10.11

Bocanegra v. Aetna Life Insurance Co., 18.9

Bonney v. San Antonio Transit Co., 28.3

Booker v. Baker, 5.1

Borneman v. Steak & Ale, Inc., 5.5

505

CASES CITED

Boyles v. Kerr, 28.3

Bradley v. Phillips Chemical Co., 16.5

Brainard v. Trinity Universal Insurance Co.,
4.1, 4.4, 28.3

Broaddus v. Long, 10.6

Brookshire Bros. v. Wagnon, 3.2

Brookshire Bros., Ltd. v. Aldridge, 1.13

Brown v. American Transfer & Storage Co.,
ch. 15 note

Brown v. Texas Employers' Insurance
Ass’n, 19.1

Browning-Ferris Industries, Inc. v. Lieck,
6.4, 28.4

Burbage v. Burbage, 32.2

Burk Royalty Co. v. Walls, 7.12

Butler v. Federated Mutual Insurance Co.,
20.3

Cadengo v. Compass Insurance Co., 20.4

Campbell v. Swinney, 10.10

C&H Nationwide, Inc. v. Thompson, 29.3

Carey v. Pure Distributing Corp., 2.4, 28.8

Carr v. Galvan, 28.3

Castleberry v. Goolsby Building Corp., 29.7,
30.4

Castro v. Hernandez-Davila, 5.1

Casualty Reciprocal Exchange v. Berry, 20.2

C.C. Carlton Industries, Ltd. v. Blanchard,
12.2, 12,5, 12.6

Central Ready Mix Concrete Co. v. Islas,
7.13, 10.14

Centurion Planning Corp. v. Seabrook
Venture II, 10.8

Cerny v. Marathon Oil Corp., 11.2, 12.5,
12.6

Childers v. A.S., 6.6

City of Austin v. Hoffman, 2.3

City of Bridgeport v. Barnes, 19.1

City of Dallas v. Jennings, 12.3

City of Fort Worth v. Satterwhite, 28.9

City of Houston v. Wormley, 10.7

City of San Antonio v. Pollock, 12.1, 12.5,
12.6

506

City of Tyler v. Likes, 11.3, 11.6—11.8, 12.1,
122, 12,3, 13,6

City of Uvalde v. Crow, 11.3, 12.2, 12.3

Clifton v. Jones, 7.10

Coastal Oil & Gas Corp. v. Garza Energy
Trust, 11.2

Coastal Plains Development Corp. v.
Micrea, Inc., 10.11

Coates v. Whittington, 28.8

Coinmach Corp. v. Aspenwood Apartment
Corp., 11.2, 11.3, 11.6, 11.8, 11.9

Collins v. Indemnity Insurance Co., 17.7

Columbia Medical Center of Las Colinas,
Inc. v. Hogue, 29.3

Columbia Rio Grande Healthcare, L.P. v.
Hawley, 3.1, 32.2

Colvin v. Red Steel Co., 2.1

Commerce & Industrial Insurance Co. v.
Ferguson-Stewart, 18.4

Commercial Insurance Co. of Newark, New
Jersey v. Smith, 18.8

Commercial Standard Insurance Co. v.
Allred, 18.1

Consolidated Underwriters v. Whittaker,
25.1, 25.4-25.7

Continental Casualty Co. v. Cook, 20.3, 20.5

Continental Insurance Co. v. Wolford, 16.1,
16.2

Conway v. Chemical Leaman Tank Lines,
29.3

Corral-Lerma [/n re], 7.8

Cortez v. State, 7.3

Creditwatch, Inc. v. Jackson, 6.5

Crosstex North Texas Pipeline, L.P. v.
Gardiner, 12.1—12.6

Crown Life Insurance Co. v. Casteel, 4.1,
32.2

Dallas National Insurance Co. v. De La
Cruz, 25.1, 25.4

Dallas Railway & Terminal v. Ector, 28.8

Dallas Railway & Terminal v. Guthrie, 28.3

Dallas Railway & Terminal v. Rogers, 2.3

Dallas Railway & Terminal v. Travis, 2.2

Dallas Railway & Terminal Co. v. Orr, 28.8

Davila v. Sanders, ch. 3 note

Davis v. City of San Antonio, 6.4

Davis v. Texas Employers' Insurance Ass'n,
20.3, 20.5

de Anda v. Blake, 10.10

DeAnda v. Home Insurance Co., 20.2

Delta Airlines v. Gibson, 2.2

Dew v. Crown Derrick Erectors, Inc., 3.1

Dillard v. Texas Electric Cooperative, ch. 3
note, 3.1—3.5

Dillard Department Stores, Inc. v. Silva, 6.3

Dolenz v. Continental National Bank, 7.4

Douglas v. Delp, 12.2, 12.3

Driess v. Frederich, 28.8

EDCO Production, Inc. v. Hernandez, 28.4

Edinburg Hospital Authority v. Trevino,
28.3

Elder v. Aetna Casualty & Surety Co., 10.9,
16.2

Ellis County State Bank v. Keever, 6.4

Ely v. General Motors Corp., 10.11

Endeavor Energy Resources, L.P. v. Cuevas,
10.12

English v. Dhane, 10.10

Entergy Gulf States, Inc. v. Summers, 10.5,
16.7

Environmental Processing Systems, L.C. v.
FPL Farming, Ltd., 11.2

Estate of Clifton v. Southern Pacific
Transportation Co., 29.3

Evans v. Illinois Employers Insurance of
Wausau, 17.7

Farley v. MM Cattle Co., ch. 3 note

Faulkenbury v. Wells, 12.5, 12.6

Federal Underwriters Exchange v. Samuel,
18.6

F.F.P. Operating Partners, L.P. v. Duenez,
5.5, 10.12

Cases Cited

Fidelity & Casualty Co. of New York v.
Shubert, 18.8

Financial Insurance Co. v. Ragsdale, 15.3

Finley v. P.G., 28.3

Fire & Casualty Insurance Co. v. Miranda,
19.1

Fireman's Fund Insurance Co. v. Weeks,
23.7, 23.8

First International Bank v. Roper Corp.,
Introduction 4(d)

Fisher v. Carrousel Motor Hotel, Inc., 7.13,
10.14

Folsom Investments, Inc. v. Troutz, 30.3

Ford Motor Co. v. Ledesma, 2.4, 23.10

Foreman v. Security Insurance Co. of
Hartford, 26.2

Forte v. State, 5.1

Fort Worth & Denver City Railway v.
Bozeman, 3.2

Fort Worth Elevators Co. v. Russell, 7.13,
10.14, 29.7, 30.4

4Front Engineered Solutions, Inc. v.
Rosales, 10.12

FPL Farming, Ltd. v. Environmental
Processing Systems, L.C., 11.2, 12.2,
12.3

Franco v. Burtex Constructors, Inc., 5.1

Freedman v. Briarcroft Property Owners,
Inc., 12.5, 12.6

Freeman v. Texas Compensation Insurance
Co., 17.7

French v. Grigsby, ch. 3 note, 28.3

Galvan v. Fedder, 3.1

Gant v. DeLeon, 14.1

Garza v. Exel Logistics, Inc., 10.5

General Chemical Corp. v. De La Lastra,
29.7

Gibson v. State, 7.3

Gilbert Wheeler, Inc. v. Enbridge Pipelines
(East Texas), L.P., 11.3, 11.5-11.7,
12.4-12.6

Gill v. Transamerica Insurance Co., 17.1

507

CASES CITED

Golden Eagle Archery, Inc. v. Jackson, 7.5,
7.9, 11.7, 11.8, 12.5, 12.6, 28.3-28.5,
29.3-29.6

Gonzalez v. Hansen, 28.6

Gonzalez v. Ramirez, 10.12

Goodnight v. Zurich Insurance Co., 16.1

Goodyear Tire & Rubber Co. v. Mayes, 10.7

Graff v. Beard, 5.5

Graham v. Franco, 28.3

Great Atlantic & Pacific Tea Co. v. Evans,
2.1

Green v. Hale, 28.6

Green International, Inc. v. Solis, 7.8

Gregg v. Delhi-Taylor Oil Corp., 11.2

Gregory v. Texas Employers' Insurance
Ass’n, 18.3

GTE Southwest v. Bruce, 17.1, 19.1, 26.1

Gulf, Colorado & Santa Fe Railway v. Jones,
Ea

Gulf Insurance Co. v. Johnson, 17.1

Gunn v. McCoy, 3.4, 28.3

Hall v. Diamond Shamrock Refining Co.,
29.7, 30.4

Hall v. Timmons, 3.2

Hanson v Green, 10.12

Hanson Aggregates West, Inc. v. Ford, 12.5,
12.6

Hardware Dealers’ Mutual Fire Insurance
Co. v. King, 16.4

Harris County v. Smith, 4.1, 7.5, 7.9, 11.8,
28.3-28.5, 29.3-29.6, 30.3, 31.4, 32.2

Hartford Accident & Indemnity Co. v.
Hooten, 16.1, 16.2

Hartford Accident & Indemnity Co. v.
Thurmond, 17.1

Haygood v. De Escabedo, 28.3, 28.5

H.E. Butt Grocery Co. v. Bilotto, 28.1, 29.1,
30.1, 31.1

Herrera v. Balmorhea Feeders, Inc., 3.2

Highlands Underwriters Insurance Co. v.
Martinez, 16.3

Hill v. Winn Dixie Texas, Inc., 3.4

Hodge v. Smith, 14.1

508

Hofer v. Lavender, 29.7, 30.4

Hoffmann-LaRoche, Inc. v. Zeltwanger, 6.5

Hoke v. Poser, 28.8

Holubec v. Brandenberger, 12.2

Home Indemnity Co. v. Draper, 16.3

Home Insurance Co. v. Davis, 19.1

Home Insurance Co. v. Gillum, 17.1

Home Interiors & Gifts v. Veliz, 28.3

Horizon Health Corp. v. Acadia Healthcare
Co., Inc., 7.8

Hot Rod Hill Motor Park v. Triolo, 12.2

Houston Fire & Casualty Insurance Co. v.
Farm Air Service, Inc., 16.7

Houston Livestock Show & Rodeo, Inc. v.
Hamrick, 7.5, 7.9

Houston Unlimited, Inc. v. Mel Acres
Ranch, 11.6, 12.5, 12.6, 31.4

Huerta v. Hotel Dieu Hospital, 3.2

IHS Cedars Treatment Ctr. v. Mason, 2.4
(quote)

Impson v. Structural Metals, Inc., 5.2

Industrial Indemnity Exchange v. Southard,
10.8

In re (see name of party)

Insurance Co. of State of Pennsylvania v.
Muro, ch. 15 note, 21.1, 23.11, 23.15,
25.1, 25.4

International-Great N.R. v. Casey, 7.10

Jackson v. Fontaine's Clinics, 3.2

Jackson v. Jackson, 26.2

Jamail v. Stoneledge Condominium Owners
Ass’n, 12.3

James v. Kloos, 3.1

Janak v. Texas Employers' Insurance Ass'n,
17.4, 17.7

J&D Towing, LLC v. American Alternative
Insurance Corp., 31.3, 31.4

J.A. Robinson Sons, Inc. v. Wigart, 10.2—
10.4, 16.3

JBS Carriers v. Washington, 5.1

J.C. Penney Co. v. Oberpriller, 10.6

Johnson v. American General Insurance Co.,
20.4

Johnson v. Pacific Employers Indemnity
Co., 17.8

Johnson v. Zurich General Accident &
Liability Insurance Co., 1.8

Johnson & Higgins of Texas, Inc. v.
Kenneco Energy, Inc., 7.5, 7.9

Kane v. Cameron International Corp., 12.5,
12.6

Katy Springs & Manufacturing, Inc. v.
Favalora, 11.8, 28.3, 28.5, 28.8, 30.3

King v. Graham, 6.4

King v. McGuff, 7.13, 10.14

King v. Skelly, 28.3

King Fisher Marine Service, L.P. v. Tamez,
32.1

Kinsel v. Lindsey, 7.8

Kramer v. Lewisville Memorial Hospital,
4.1

Kroger Co. v. Keng, 3.2

Labaj v. Vanhouten, 13.1

Larson v. Ellison, 1.8

Lay v. Aetna Insurance Co., 12.5, 12.6

Leadon v. Kimbrough Bros. Lumber Co.,
10.6

Leal v. Employers Mutual Liability
Insurance Co., 19.1

Lemos v. Montez, Introduction 4(b), (d),
28.3

Leordeanu v. American Protection Insurance
Co., 17.6-17.8

Lewis Casing Crews, Inc. [In re], 4.1, 4.3

Liberty Mutual Insurance Co. v. Adcock,
25.3

Liberty Mutual Insurance Co. v. Hopkins,
18.5-18.7

Liberty Mutual Insurance Co. v. Stanley,
20.3, 20.5

Cases Cited

Limestone Products Distribution, Inc. v.
McNamara, 10.1

Linden-Alimak, Inc. v. McDonald, 10.3

Loom Craft Carpet Mills, Inc. v. Gorrell,
10.12

Louisiana-Pacific Corp. v. Knighten, 5.1

Lubbock Independent School District v.
Bradley, 19.1

Ludt v. McCollum, 11.3, 11.6, 12.5, 12.6

Luensmann v. Zimmer-Zampese &
Associates, Inc., 12.3

Lujan v. Houston General Insurance Co.,
17.4

Luna v. North Star Dodge Sales, Inc., 7.10,
31.4

MacConnell v. Hill, 2.3

March v. Victoria Lloyds Insurance Co.,

18.2

Marshall v. Ranne, 13.1—13.5

Martinez v. Hays Construction, Inc., 10.12

Marts v. Transportation Insurance Co., 19.1

Maryland Casualty Co. v. Smithson, 18.7

Maryland Casualty Co. v. Sullivan, 16.5

Massman-Johnson v. Gundolf, 41

Mauricio v. Castro, 14.1

McCambridge v. State, 5.1

McCartney v. Aetna Casualty & Surety Co.,

17.1

McDonald Transit, Inc. v. Moore, 3.3

McKee v. City of Mt. Pleasant, 12.3

Medina v. Herrera, 18.9

Merrell Dow Pharmaceuticals, Inc. v.

Havner, 11.2, 12.5, 12.6

Meyer v. Western Fire Insurance Co., 17.7,

17.8

Mid-Century Insurance Co. v. Texas
Workers’ Compensation Commission,
23.3

Mid-Continent Casualty Co. v. Whatley,
18.1

Middleton v. State, 7.3

Millers Mutual Fire Insurance Co. v. Gilbert,

18.8

509

CASES CITED

Mireles v. Ashley, 10.12

Missouri Pacific Railroad v. American
Statesman, 5.3

Missouri Pacific Railroad v. Dawson, 30.3
Mitchell v. Akers, 30.3

Moore v. Lillebo, 29.3—29.6

Moore v. McKay, 13.3-13.5

Morales v. Liberty Mutual Insurance Co.,
15.1, 15.2, 16.1

Morris v. JTM Materials, Inc., 10.12
Motsenbocker v. Wyatt, 2.4

Moulton v. Alamo Ambulance Service, 28.9
Mo-Vac Service Co. v. Escobedo, 18.7
Mundy v. Pirie-Slaughter Motor Co., 10.12
Murray v. O&A Express, Inc., 5.3

Murray v. Templeton, 30.3

Nabors Well Services, Ltd. v. Romero, 2.3,
4.1

Najera v. Great Atlantic & Pacific Tea Co.,
4.2

Nall v. Plunkett, 5.5

Nasser v. Security Insurance Co., 18.5
Nath v. Texas Children's Hospital, 7.8
National Freight, Inc. v. Snyder, 28.3
Natural Gas Pipeline Co. of America v.
Justiss, 12.4

Newsom v. Ballinger I.S.D., 17.7
Newspapers, Inc. v. Love, 10.1, 10.9, 16.2
Nicholson v. Smith, 13.5

Nixon v. Mr. Property Management Co., 5.1
North Houston Pole Line Corp. v.
McAllister, 10.12

Ocean Accident & Guarantee Corp. v.
Nance, 20.2
Old Republic Insurance Co. v. Warren, 27.1

Pacific Indemnity Co. v. Jones, 16.5

510

Parker v. Highland Park, Inc., ch. 3 note

Parkway Co. v. Woodruff, 11.3

Parmlee v. Texas & New Orleans Railroad,
10.6

Pasadena State Bank v. Isaac, 31.4

Pate v. Yeager, 13.1, 13.5

Perez v. Kleinert, 4.1, 4.4, 28.3

Perry v. S.N., 5.1

Petroleum Casualty Co. v. Canales, 20.3,
20.5

Petroleum Solutions, Inc. v. Head, 1.13

Pfeffer v. Simon, 13.1

Philip Morris USA v. Williams, 7.12, 28.7,
29.7, 30.4

Phoenix Refining Co. v. Tips, 3.1

Placencio v. Allied Industrial International,
Inc., 32.1

Plemmons v. Gary, 3.2

Pojar v. Cifre, 28.6

Pool v. Ford Motor Co., 5.1

Pope v. Moore, 28.9

Porras v. Craig, 11.7, 12.5, 12.6

Port Elevator-Brownsville, L.L.C. v.
Casados, 16.5

Powers v. Palacios, 13.1, 13.5

Premcor Refining Group, Inc. [/n re], 12.2

Prewitt v. Branham, 7.10

Producers Chemical Co. v. McKay, 10.2-
10.4

Proulx v. Wells, 14.1

Quanah Acme & Pacific Railway Co. v.
Swearingen, 12.3

Randall’s Food Markets, Inc. v. Johnson, 6.2
Reagan v. Vaughn, 28.10, 28.11

Reeder v. Daniel, 5.5

Reed Tool Co. v. Copelin, 28.4

Region XIX Service Center v. Banda, 25.3
Richardson v. Holmes, 29.3

Richey v. Brookshire Grocery Co., 6.4
Robert R. Walker, Inc. v. Burgdorf, 2.2, 10.7

Roberts v. Williamson, 28.6

Robertson v. Home State County Mutual
Insurance Co., 16.4

Robertson Tank Lines v. Van Cleave, 10.6

Rodriguez v. Service Lloyds Insurance Co.,
15.1, 23.7-23.9, 23.14, 23.16

Rohrmoos Venture v. UTSW DVA
Healthcare, LLP, 7.8

Romero v. KPH Consolidation, Inc., 4.1,
32.2

Ronald Holland's A-Plus Transmission &
Automotive, Inc. v. E-Z Mart Stores,
Inc., 12.3

Rosell v. Central West Motor Stages, Inc.,
18.12

Royce Homes v. Humphrey, 12.5, 12.6

Rudes v. Gottschalk, 2.3, 2.4, 3.1

Ruiz v. Guerra, 4.1

Russell v. Russell, 1.8

Russell Construction Co. v. Ponder, 10.13

Saenz v. Insurance Co. of State of
Pennsylvania, 19.1

Safford v. Cigna Insurance Co., 20.3

Sanchez v. Schindler, 10.2—10.4, 16.3, 29.4—
29.6

Sanchez v. State Office of Risk
Management, 18.2

Sanmina-SCI Corp. v. Ogburn, 28.3

Saunders v. Texas Employers' Insurance
Ass’n, 18.3, 18.4

Sax v. Votteler, 28.5

Schaefer v. Texas Employers’ Insurance
Ass’n, 19.1

Schmader v. Butschek, 7.6, 7.10

Schneider v. Esperanza Transmission Co.,
10.12

Schneider National Carriers, Inc. v. Bates,
11.3, 11.5-11.7, 12.1-12.6

Scott v. Atchison, Topeka & Santa Fe
Railway, 3.5

SeaBright Insurance Co. v. Lopez, 17.6, 17.7

Sears, Roebuck & Co. v. Castillo, 6.1, 6.3

Shoemaker v. Estate of Whistler, 10.11

Cases Cited

Singh v. Payan, 28.8

Skyline Cab Co. v. Bradley, 2.2

Smith v. Cox, 10.10

Smith v. Dallas County Hospital District,
IT

Smith v. Home Indemnity Co., 18.9

Smith v. Merritt, 5.5

Smith v. Patrick W.Y. Tam Trust, 7.8

Smith v. Sewell, 5.5

Southern Pacific Co. v. Castro, 5.1, 5.2

Southern Surety Co. v. Shook, 18.5

Southland Corp. v. Lewis, 5.5

Southwest Grain Co. v. Pilgrim's Pride S.A.
de C.V., 7.10

Spencer v. Eagle Star Insurance Co. of
America, ch. 15 note, 5.5

Standard Fire Insurance Co. v. Cuellar, 18.1

Standard Fire Insurance Co. v. Ratcliff, 19.1

Standard Fire Insurance Co. v. Rodriguez,
17.7

Standard Fruit & Vegetable Co. v. Johnson,
6.5

State v. Houston Lighting & Power Co.,
10.11

State Department of Highways & Public
Transportation v. Payne, 32.1

State Farm Mutual Automobile Insurance
Co. v. Campbell, 7.12, 28.7, 29.7, 30.4

State Office of Risk Management v. Adkins,
TAI

State Office of Risk Management v.
Escalante, 17.1

State Office of Risk Management v. Foutz,
19.1

State Office of Risk Management v. Lawton,
20.1

State Office of Risk Management v.
Martinez, 21.1

St. Elizabeth Hospital v. Garrard, 28.3

Stevens v. Travelers Insurance Co., 1.9

St. Joseph Hospital v. Wolff, 10.2—10.4,
10.8, 10.10, 10.11

St. Paul Fire & Marine Insurance Co. v.
Confer, 17.8

Strickland v. Medlen, 7.10

Sturtevant v. Pagel, 10.13

511

CASES CITED

Tarrant County Hospital District v. Jones,
30.3

Tarry Warehouse & Storage Co. v. Duvall,
3.1

Taylor v. GWR Operating Co., 10.11

Teague v. Charter Oak Fire Insurance Co.,
19.1

Texas A&M University v. Bishop, 10.8

Texas & New Orleans Railroad v. Landrum,
30.3

Texas & Pacific Railway v. Hagenloh, 10.7

Texas & Pacific Railway v. Van Zandt, 28.3

Texas Casualty Insurance Co. v. Beaseley,
20.3, 20.5

Texas Commission on Human Rights v.
Morrison, 4.1, 32.2

Texas Department of Public Safety Officers
Ass’n v. Denton, 1.11

Texas Department of Transportation v. Able,
10.11

Texas Employers’ Insurance Ass’n v.
Adams, 17.7

Texas Employers’ Insurance Ass’n v.
Beckman, 20.5

Texas Employers’ Insurance Ass’n v.
Brogdon, 18.7

Texas Employers’ Insurance Ass’n v. Byrd,
17.7

Texas Employers’ Insurance Ass’n v.
Espinosa, 21.1

Texas Employers’ Insurance Ass’n v.
Etheredge, 19.1, 19.3

Texas Employers’ Insurance Ass’n v.
Harper, 16.7

Texas Employers’ Insurance Ass’n v.
McNorton, 23.4

Texas Employers’ Insurance Ass’n v.
Roberts, 18.8

Texas Employers’ Insurance Ass’n v.
Schaefer, 19.1

Texas Employers’ Insurance Ass’n v.
Shannon, 21.1

Texas Employers’ Insurance Ass’n v.
Thomas, 20.3, 20.5

512

Texas Employers’ Insurance Ass’n v.
Wilson, 21.1

Texas Farm Products v. Leva, 28.3

Texas Indemnity Insurance Co. v. Dill, 18.2

Texas Indemnity Insurance Co. v. Staggs,
2.4 (quote)

Texas Mutual Insurance v. Chicas, 19.1

Texas Mutual Insurance Co. v. Cruz, 22.2,
23.12

Texas Mutual Insurance Co. v. Jerrols, 17.4,
177

Texas Mutual Insurance Co. v. Ruttiger, ch.
15 note, 25.1, 25.2

Texas Property & Casualty Guaranty Ass’n
v. National American Insurance Co.,
16.3

Texas Property & Casualty Insurance
Guaranty Ass’n v. Brooks, 17.7

Texas Workers' Compensation Commission
v. Garcia, ch. 15 note, 15.1-15.3, 23.1—
23.3,23,7-23.9, 23,16, 24.1

Texas Workers’ Compensation Fund v.
Simon, 18.1

Texas Workers’ Compensation Insurance
Fund v. DEL Industrial, Inc., 10.5, 16.5

Texas Workers’ Compensation Insurance
Fund v. Lopez, 19.1

Thomas v. Oldham, 3.3, 31.3, 31.4

Thompson v. Hodges, 6.6

Thompson v. Quarles, 28.8

Thompson v. Travelers Indemnity Co. of
Rhode Island, 16.2

Thompson v. Wooten, 2.3

Thota v. Young, 4.1, 32.2

T.J. Allen Distributing Co. v. Leatherwood,
28.3

Tony Gullo Motors I, L.P. v. Chapa, 7.8,
29.7, 30.4

Torrington Co. v. Stutzman, 4.1

Traders & General Insurance Co. v. Frozen
Food Express, 16.7

Traders & General Insurance Co. v. Ross,
18.1

TransAmerican Natural Gas Corp. v. Powell,
1.13

Transcontinental Bus System, Inc. v.
Scirratt, 28.8

Transcontinental Insurance Co. v. Crump,
24, 13.1, 15.1, 23.10, 27.1

Transcontinental Insurance Co. v. Smith,
17.2

Transportation Insurance Co. v. Maksyn,
17,1, 19.1, 26.1

Transportation Insurance Co. v. Moriel, 1.4,
10.12, 29.7, 30.4

Transport Insurance Co. v. Faircloth, ch. 15
note

Transport Insurance Co. v. Liggins, 18.1

Travelers Insurance Co. v. Echols, 20.5

Travelers Insurance Co. v. Garcia, 19.1

Travelers Insurance Co. v. Marmolejo, 21.1

Travelers Insurance Co. v. Ray, 16.2

Travelers Insurance Co. v. Seabolt, 25.1

Trevino v. Ortega, 1.13

Trinity Universal Insurance Co. v. Cowan,
I1:

Triplex Communications, Inc. v. Riley,
10.11

Turnbough v. United Pacific Insurance Co.,
16.1, 16.2

Turner v. Texas Employers' Insurance
Ass’n, 17.7

20801, Inc. v. Parker, 5.6

Twyman v. Twyman, 6.5

TXI Transportation Co. v. Hughes, 10.12

Unitec Elevator Services Co. [/n re], 4.1, 4.3

United Scaffolding, Inc. v. Levine, 32.1

United States Fidelity & Guaranty Co. v.
Bearden, 19.1

United States Fidelity & Guaranty Co. v.
Hall, 16.7

United States Fire Insurance Co. v. Brown,
1*3

United States Fire Insurance Co. v.
Eberstein, 17.7

United States Fire Insurance Co. v.
Pettyjohn, 18.9

University of Texas System v. Schieffer,
17.1

Cases Cited

U.S. Fire Insurance Co. v. Ramos, 19.3
Utica Mutual Insurance Co. v. Ritchie, 18.8

Valley Forge Insurance Co. v. Austin, 18.9

Valverde v. Biela's Glass & Aluminum
Products, Inc., 4.1

Vann v. Bowie Sewerage Co., 11.3, 12.5,
12.6

Varner v. Cardenas, 7.8

Vasquez v. Six Flags Houston, Inc., 18.7

Vestal v. Gulf Oil Corp., 11.3

Vivier v. Lumbermen's Indemnity
Exchange, 18.5

Vogler v. Blackmore, 29.7

Wackenhut Corp. v. Gutierrez, 1.13, 32.1

Walker v. Texas Electric Service Co., 12.3

Walls Regional Hospital v. Bomar, 18.5,
18.6

Wal-Mart Stores, Inc. v. Forte, 7.7

Wal-Mart Stores, Inc. v. Johnson, 1.13

Wal-Mart Stores, Inc. v. Odem, 6.6

Watson v. Brazos Electric Power
Cooperative, 12.3

Weicher v. Insurance Co. of North America,
18.1

Weidner v. Sanchez, 10.8

West v. Brenntag Southwest, Inc., 12.2-12.4

Whittlesey v. Miller, 28.4

Whole Foods Market Southwest, L.P. v.
Tijerina, 28.3

Wilen v. Falkenstein, 11.9

Williams v. Price, 5.1

Williams v. Steves Industries, Inc., 10.12

Wilz v. Flournoy, 1.11

Wingfoot Enterprises v. Alvarado, 10.5, 16.3

Winkle Chevy-Olds-Pontiac, Inc. v.
Condon, 7.9, 7.10

Woods v. Crane Carrier Co., Introduction
4(e)

Wright v. Gifford-Hill & Co., 7.13, 10.14,
29.7, 30.4

513

CASES CITED

Yarborough v. Berner, 2.3, 3.3, 3.4

Yeldell v. Holiday Hills Retirement &
Nursing Center, Inc., 17.4

Yellow Cab & Baggage Co. v. Green, 28.8

Yowell v. Piper Aircraft Corp., 29.3, 29.4

514

Zale Corp. v. Rosenbaum, 14.1
Zimmerman v. Massoni, 14.1

Zurich American Insurance Co. v. Gill, 19.1

SUBJECT INDEX

[Decimal references are to PJC numbers.]

Abandonment, definition of, for workers’

compensation, 26.2
Access doctrine, 17.7
Accident, unavoidable, 3.4

Accredited educational institution,
definition of, for workers?
compensation, 26.3

Act of God, Introduction 4(c), 3.5, 18.1

Admonitory instructions to jury, ch. 1.
See also Instructions to jury
Allen charge, 1.9
bifurcated trial, 1.4
burden of proof, Introduction 4(f), 1.3
charge of court, 1.3
circumstantial evidence, 1.8
to deadlocked jury, 1.9
discharge of jury, 1.5
on discussing trial, 1.1—1.3, 1.5, 1.6
on jurors' note-taking, 1.2, 1.3
on jurors' use of electronic technology,
1.1-1.3
if jury disagrees about testimony, 1.7
if jury permitted to separate, 1.6
after jury selection, 1.2
oral instructions, 1.1, 1.5
parallel theories on damages, 1.12
preponderance of evidence,
Introduction 4(f), 1.3
privilege,
Fifth Amendment, 1.11
generally no inference, 1.10
spoliation, 1.13
after verdict, 1.5
before voir dire, 1.1

Adult child, parents? claim for death of,
29.6. See also Child; Minor child

Agency, ch. 10
in employment relationship, 10.1—10.9,
10.14
respondeat superior, 5.6, 10.6
nonemployee, 10.10

Aggravation of preexisting injury or
condition, 28.8
Aggrieved party, 15.1

Alcoholic beverage licensee, liability of,
5:5,.5.0

Allen charge, 1.9
Animal injury, ch. 13

Anticipation of consequences. See
Foreseeability

Appeals panel decision, consideration of,
15.2

Assault and battery, 6.6
Assumption of risk, ch. 3 note, 13.3, 13.5
Attorney's fees, 7.8, 27.1

Authority, citation of, in comments,
Introduction 5, 15.1

Automobile. See Motor vehicle

Average weekly wage, ch. 22

Basic negligence
definitions, ch. 2. See also specific
headings for definitions of terms

child's degree of care, 2.3
high degree of care, 2.2
negligence, 2.1
ordinary care, 2.1
proximate cause, 2.4

questions, ch. 4
broad-form, 4.1 (see also Broad-form

negligence question)

515

SUBJECT INDEX

Basic negligence, questions—continued
comparative negligence, 4.3
gross negligence, 4.2 (see also Gross
negligence)
proportionate responsibility, 4.3

Bifurcation, 1.4, 7.12, 28.7, 29.7, 30.4
Borrowed employee, 10.2—10.5, 16.3

Broad-form negligence question,
Introduction 4(a). See also Basic
negligence

negligence per se, Introduction 6, 5.1—5.5

supreme court's preference for,
Introduction 4(a), 4.1, 32.2

when not feasible, 4.1, 5.1, 32.2

when to use, 4.1, 5.1—5.5

Broad-form submission of damages
elements, 28.3

Burden of proof, placement of
general negligence, Introduction 4(f), 1.3
workers' compensation, ch. 15

Burial expenses, 30.3

Burns to the body, workers?
compensation, 25.7

Bystander injury, 28.3, 28.11

C
Care. See Degree of care
Casual employee, 16.4

Cause. See also Producing cause; Proximate
cause
new and independent, 3.1
sole proximate, 3.2

Charge of the court, 1.3. See also
Unanimous answer, exemplary damages
definitions and instructions, placement of,
Introduction 4(e)
error, preservation of, 32.1, 32.2

Child. See also Adult child, parents’ claim
for death of; Death, workers’
compensation, eligible child; Minor
child

516

loss of consortium by, 28.10, 28.11

operation of motor vehicle by, liability
for, 10.10

services of, examples of, 28.6

Circumstantial evidence, 1.8

Clear and convincing evidence, definition
of, 4.2, 7.11, 10.14

Comfort, personal, 17.4
Common carrier, 2.1, 2.2

Common-law negligence. See also
Negligence
dramshop liability for, 5.5
heart attack as excuse for, 5.2
negligence per se and, Introduction 6, 5.1,
NO

Community of pecuniary interest, 10.11

Community property
definition of, 29.3, 29.4
instruction on, in wrongful death actions,
29.3
personal injury damages as, 28.3

Companionship and society, loss of, 29.3—
29.6

Comparative negligence, 4.1, 4.3, 4.4. See
also Contributory negligence;
Negligence; Proportionate responsibility

Comparative responsibility. See
Proportionate responsibility

Conscious pain and suffering, decedent's,
30.3

Consortium
“consortium-type” damages, 28.6
definition of, 28.4
loss of, recovery for, 28.4
parental, 28.10, 28.11

Contractor, independent. See Independent
contractor

Contribution defendant. See also Multiple
defendants
definition of, 4.1

if joined, 4.3, 4.4

Contributory negligence. See also
Negligence; Proportionate responsibility
damages not reduced for decedent's
negligence, 29.3—29.6, 30.3
damages not reduced for parent's
negligence, child's claim, 28.11
damages not reduced for plaintiff's
negligence
personal injury, 28.3, 28.5
property, 31.3, 31.4
damages not reduced for spouse's
negligence, personal injury, 28.4
instruction not to reduce amounts because
of plaintiff's negligence, 31.3, 31.4
instruction not to reduce amounts for
decedent's negligence, 29.3, 30.3

Control, right of, 10.8—10.10

Conversion, in theft liability actions, 7.4,
7.9, 7.10

Corporation
imputing gross negligence to, 10.14
vice-principal of, 10.14

Cosmetic disfigurement. See
Disfigurement

Cost of repairs to property, 31.3, 31.4

Course and scope of employment, ch. 17
injury causing death in, 26.1

Court's charge. See Charge of the court

Damages
parallel theories on, 1.12
pecuniary loss, 29.3-29.6

Damages, conversion, 7.5, 7.7, 7.10

Damages, exemplary. See Exemplary
damages

Damages, nuisance, 12.5, 12.6

Damages, personal injury, ch. 28
aggravation of preexisting injury or
condition, 28.8

Subject Index

conditioning instruction for questions on
liability, 28.1
“consortium-type,” 28.6
economic
definition of, 28.3—28.5
separating from noneconomic, 28.3—
28.5
eggshell plaintiff, 28.8C
elements
disfigurement, 28.3, 28.5
loss of consortium, 28.4, 28.10, 28.11
loss of earning capacity, 28.3
loss of household services, 28.4
loss of services of minor child, 28.6
medical care, 28.3
physical impairment, 28.3, 28.5
physical pain and mental anguish, 28.3,
28.5
separate answers for, 28.3-28.5
exclusionary instruction (see Exclusionary
instruction)
exemplary, 28.7
failure to mitigate, exclusionary
instruction for, 28.9
foreseeability, 28.3
injury of minor child, 28.5, 28.6
injury of parent, 28.10, 28.11
injury of spouse, 28.4
for nuisance, 12.5
parental consortium, 28.10, 28.11
past and future, separate answers for,
28.3—28.6, 28.11
preaccident or injury-enhancing conduct,
4.1, 28.8-28.9
preexisting injury or condition, 28.8
taxation of, 28.2

Damages, property, chs. 7, 31

conditioning instruction for questions on
liability, 31.1

cost of repairs, 31.4

intrinsic value of property, 7.10

loss of use, 7.10, 31.3, 31.4

lost income from appropriated business
contacts and files, 7.6, 7.10

market value before and after occurrence,
31.3

517

SUBJECT INDEX

Damages, property—continued

market value of appropriated property,
1.6, 7.10

market value of appropriated services,
7.6, 7.10

prejudgment interest on, 31.3, 31.4

rental value, 7.6, 7.10

salvage value, 31.3

separate answers for elements, 31.3, 31.4

taxation of, 31.2

travel expenses, 7.10

Damages, survival, ch. 30
compensatory, 30.3
conditioning instruction for questions on
liability, 30.1

economic

definition of, 30.3

separating from noneconomic, 30.3
exemplary, 30.4
prejudgment interest on, 30.3, 30.4
separate answers for elements, 30.3
taxation of, 30.2

Damages, theft liability, 7.5—7.7
Damages, travel expenses, 7.10
Damages, trespass, 11.3

Damages, wrongful death, ch. 29
claim of
surviving child, 29.4
surviving parents, 29.5, 29.6
surviving spouse, 29.3
conditioning instruction for questions on
liability, 29.1
earnings of minor child, 29.5
economic
definition of, 29.3—29.6
separating from noneconomic, 29.3—
29.6
elements, 29.3—29.6
exemplary, 29.7, 29.8
past and future, separate answers for,
29.3—29.5
prejudgment interest on, when not
recoverable, 29.3, 29.4, 29.7

518

separate answers for elements, 29.3-29.6

survival damages permitted in suit for,
30.3
taxation of, 29.2

Deadlocked jury, 1.9

Death, damages for. See Damages,
wrongful death

Death, workers? compensation
eligible child, 26.3
eligible grandchild, 26.4
eligible parent, 26.5
eligible spouse, 26.2
injury causing, in course and scope of
employment, 26.1

Death benefit claims, workers'
compensation, 20.4, ch. 26

Decedent
compensatory damages in survival action,
30.3
estate of, 29.3, 29.4
exemplary damages for wrongful death,
29.7, 29.8
negligence of, 29.3—29.6, 30.3

Defective vehicle, negligent entrustment
of, 10.13

Defendants, multiple. See Multiple
defendants

Defenses, chs. 14, 18

Definitions. See also specific headings for
definitions of terms
basic definitions in negligence actions,
ch. 2
and instructions, Introduction 4(d)
placement in charge, Introduction 4(e)

Degree of care
child's, 2.1, 2.3
common carrier's, 2.1, 2.2
high, 2.1, 2.2
ordinary, 2.1

Dependents, definition of, for workers’
compensation, 26.3—26.5

Designated doctor, weight given opinion
of, 15.3

Deviation by employee, 10.7
Diligence in procuring service, 14.1

Disability, maximum medical
improvement, and impairment, ch. 23
bona fide position of employment, 23.4,
23.5
weekly earnings offered through, 23.6
disability
definition of, 23.11
duration of, 23.2
producing cause of, 23.1
wages earned during, 23.3
impairment
definition of, 23.15
rating, 23.9, 23.16
reduced earnings as direct result of,
24.2, 24.3
maximum medical improvement
definition of, 23.14
multiple alternative impairment ratings,
23.9
negating Division’s finding of, 23.7,
23.8
wages, definition for, 23.12

Disagreement of jury about testimony, 1.7
Discovered peril, ch. 3 note
Disease, occupational, ch. 19

Disfigurement, 28.3, 28.5
cosmetic, 28.3

Doctor’s fees. See Expenses, medical

Domesticated animal, injuries caused by,
ch. 13

Domestic worker, 16.4
Double recovery, 28.3

Dramshop liability, 5.5, 5.6
affirmative defense, 5.6

Subject Index

Driver
driving wrong way on one-way street, 5.1
intoxicated, 5.1
reckless, incompetent, or unlicensed,
10.12

Driver’s license, 10.12
Dual-purpose doctrine, 17.7

Duties, resumption of by employee, 10.7

E
Earning capacity, loss of, 28.3
Earnings of minor child, 28.5, 28.6, 29.5
Eggshell plaintiff, 28.8C
Election of remedies, 18.9

Electronic technology, jurors’ use of, 1.1—
1.3

Emergency, Introduction 4(c), 3.3

Emotional distress, intentional infliction
of, 6.5

Employee, non—workers’ compensation
borrowed, 10.2—10.5
definition of, 10.1
deviation by, 10.7
scope of employment, 10.6, 10.7
special, 10.2, 10.3

Employee, workers? compensation
borrowed, 16.3
definition of, 16.1
excluded employment, 16.4
farm and ranch, 16.4
on-call, 17.1
similar, definition of, 22.5

Employer, non—workers’ compensation

control by, in independent contractor
relationship, 10.9

defense to respondeat superior liability
under statutory dramshop act or
common law, 5.6

duty of, to investigate driving record of
employee, 10.12

exemplary damages against, 29.7, 30.4

519

SUBJECT INDEX

Employer, non—workers’ compensation—

continued
gross negligence of, 10.14
immunity of, under Workers’

Compensation Act, 4.1, 4.3, 10.5

intentional tort by, 28.4
liability for nonemployee, 10.10
rebuttal instruction for, 10.3, 10.5, 10.8
staff leasing agency as, 10.5
vicarious liability of, 10.1—10.4
vice-principal as, 5.6

Employer, workers? compensation
immunity of, under Workers’
Compensation Act, 4.1, 4.3, 10.5
more than one business, 16.5

Employment, workers? compensation
active effort to obtain, 24.4, 24.5
course and scope of, ch. 17
out-of-state, and injury, 16.6

Enterprise, joint, 10.11

Entrustment, negligent. See Negligent
entrustment

Error in the charge, preservation of, 32.1,

322

Evidence. See also Burden of proof,
placement of, Testimony, jury’s
disagreement about

circumstantial, 1.8

clear and convincing, 4.2, 10.14

comment on weight of, 3.4

insufficient, 28.3—28.5, 29.3—29.6, 30.3,
31.4

preponderance of, Introduction 4(f), 1.3

spoliation of, 1.13

Exceptions, defenses and, in workers’
compensation, ch. 18

Excluded employment, in workers’
compensation, 16.4

Exclusionary instruction
damages not reduced for decedent’s

520

negligence
survival, 30.3
wrongful death, 29.3—29.6
damages not reduced for plaintiff's or
parent’s negligence
personal injury, 28.3—28.5, 28.11
property, 31.3, 31.4
damages not reduced for spouse’s
negligence, personal injury, 28.4
for failure to mitigate, 4.1, 4.3, 28.9
for other condition, 28.8
for preexisting injury or condition that is
aggravated, 28.8

Excuse for statutory violation, 5.2

Exemplary damages, 4.2

based on criminal act of another, 7.13

bifurcation, 1.4, 7.11, 28.7, 29.7, 30.4

for conversion, 7.11

against corporation, 7.13, 10.14

definition of, 28.7, 29.7, 30.4

when employer covered by Workers’
Compensation Act, 29.7, 30.4

limitation on amount of recovery, 28.7,
29.7, 30.4

exceptions to, 4.2

limits on conduct to be considered for,
28.7, 29.7, 30.4

for malicious prosecution, 6.4

out-of-state conduct and, 7.12, 28.7, 29.7,
30.4

personal injury, 28.7

prejudgment interest not recoverable on,
7.12, 28.7, 29.7, 30.4

survival, 30.4

for theft liability, 7.11—7.13

unanimous answer, 7.12, 28.7, 29.7, 30.4

wrongful death apportionment, 29.7, 29.8

Existence of injury, 28.3

Expenses

funeral and burial, 30.3

medical, 28.3, 28.5, 30.3

pecuniary loss, 29.3-29.6

property damages, cost of repairs, 31.4

Extent-of-injury disputes, 21.1

Extreme and outrageous conduct, as
element of intentional infliction of
emotional distress, 6.5

Extreme weather temperature, 18.1

Failure to mitigate effects of injury,
exclusionary instruction for, 4.1, 4.3,
28,9, 28,11

False imprisonment
definition of, 6.1
instruction on defense of privilege to
investigate theft, 6.3
instruction on unlawful detention by
threat, 6.2

False token, definition of, 7.3

Fifth Amendment privilege, 1.10, 1.11
First responder, 17.2

Fixed place of employment, 17.7

Foreseeability, 28.3
not required in determining damages for
assault, 6.6
in proximate cause definition, 2.4

Funeral and burial expenses, 30.3

Future medical care, 28.3

G
Grandchild, eligible, 26.4

Gross negligence. See also Malice
definitions of, 4.2, 10.14
exemplary damages conditioned on, 28.7,
29.7, 30.4
imputed to corporation, 10.14

H
Heart attack, 17.2
High degree of care, 2.1, 22
Horseplay, 18.7

Subject Index

Household services, loss of, 28.4

Hypothetical examples, Introduction 4(g)

I
“If any,” use of, 28.3
Imminent peril, ch. 3 note, 3.3

Immunity of employer, Workers’
Compensation Act, 4.1, 4.3, 10.5

Impairment
definition of, 23.15
rating, 23.9, 23.16
reduced earnings as direct result of, 24.2,
24.3

Income taxes, instruction on whether
damages are subject to, 28.2, 29.2,
30.2, 31.2

Incompetent driver, negligent
entrustment to, 10.12

Independent contractor, non—workers’
compensation

definition of, 10.5, 10.8

by written agreement but evidence
contradicts, 10.9

Independent contractor, workers’
compensation, 16.2
subcontracting to avoid liability, 16.7

Inferential rebuttal, Introduction 4(c),
ch. 3
of employment relationship, 10.3—10.5,
10.8
Informal marriage, definition of, 26.2
Inheritance, loss of, 29.3—29.6

Injurious practices of employees of Texas
A&M University, University of
Texas, or Texas Department of
Transportation, 18.8

Injury, failure to mitigate, 28.9
“Injury,” use of, 4.1, 4.3, 4.4, 28.9, 28.10

Injury, preexisting injury or condition,
28.8

521

SUBJECT INDEX

Injury, workers? compensation
claim for compensation to Division, 20.4
contesting compensability of, 20.1
in course and scope of employment, ch.
17

heart attack, 17.2

producing death, 26.1

while traveling, 17.6—17.8
date of, for occupational disease, 19.1
definition of, 17.1, 26.1
employee's intent to injure another, 18.6
employer's actual knowledge of, 20.2
extent of injury disputed, 21.1
followed by self-inflicted death, 18.4
good cause for delay in filing claim, 20.5
good cause for delay in notifying

employer, 20.3

intentional act of another person, 18.5
notice to carrier, 20.2
notice to employer, 20.2, 20.3
self-inflicted, 18.3

Injury damages. See Damages, personal
injury
Insect sting, 18.1

Instructions to jury

generally, Introduction 4(c)-(e)

admonitory (see Admonitory instructions
to jury)

on community property in wrongful death
suit, 29.3

damages conditioned on liability, 28.1,
29.1, 30.1, 31.1

damages not reduced for decedent’ s
negligence, 29.3—29.6, 30.3

damages not reduced for plaintiff's
negligence, 28.3, 28.5, 31.3, 31.4

damages not reduced for spouse's
negligence, 28.4

exclusionary (see Exclusionary
instruction)

exemplary damages, 28.7, 29.7, 30.4

inferential rebuttal (see Inferential
rebuttal)

on jurors' note-taking, 1.2, 1.3

on jurors' use of electronic technology,

522

1.1-1.3
negligence per se, ch. 5
on privilege, 1.10, 1.11
on spoliation, 1.13
unanimity, 1.4, 4.2

Intentional act of another person, injury
caused by, in workers? compensation,
18.5

Intentional personal torts, ch. 6

Intention to injure another, in workers?
compensation, 18.6

Interest, prejudgment. See Prejudgment
interest

Intestacy laws, 29.3, 20.4

Intoxication, non-workers? compensation
of customer, 5.5
definition of, 5.1
of driver, 5.1
presumption of, 5.1

Intoxication, workers? compensation,
18.2

Intrinsic value of property in theft
liability actions, 7.10
J

Joint and several liability, exceptions to
limitations on, 4.1

Joint enterprise, 10.11
Joint venture, 10.11

Jury instructions. See Instructions to jury

L
Last clear chance, ch. 3 note
Last injurious exposure, 19.3

Liability. See also entries for Damages
of alcoholic beverage licensee, 5.5
damages conditioned on, 28.1, 29.1, 30.1,
31.1
of employer, vicarious, 10.1—10.4

joint and several, exceptions to limitations
on, 4.1

License to drive, negligent entrustment,
10.12

Lifetime income benefits, workers’
compensation, ch. 25
burns to the body, 25.7
incurable insanity or imbecility, 25.6
spinal injury resulting in paralysis, 25.5
total and permanent loss of vision, 25.4
total loss of use, 25.1—25.4
duration of, 25.3
injury causing, 25.1
of two members, producing cause of,
25.2

Limitation on trial court's jurisdiction,
workers? compensation, 25.2

Limitations, tolling by diligence in
service, 14.1

Limitations on recovery of exemplary
damages, 28.7, 29.7, 30.4
exceptions to, 4.2

Liquor, driving while intoxicated, 5.1

*Loaned" employee. See Borrowed
employee; Employee

Loaned vehicle, 10.12, 10.13
Loss of addition to estate, 29.3

Loss of companionship and society,
29,3-29,6

Loss of consortium, 28.4
parental, 28.10, 28.11

Loss of earning capacity, 28.3, 28.5

Loss of earnings, 28.3, 28.5
of minor child, 28.5, 28.6, 29.5
parents’ right to, under Family Code,
28.5, 28.6

Loss of household services, 28.4
Loss of inheritance, 29.3—29.6

Loss of rental value in theft liability
actions, 7.10

Subject Index

Loss of services
child's death, 29.5, 29.6
child's injury, 28.6
parent's death, 29.4
spouse's death, 29.3
spouse's injury, 28.4

Loss of use of property
damages, 31.3, 31.4
in theft liability actions, 7.4, 7.10

Malice. See also Gross negligence;
Malicious prosecution
definition of
for exemplary damages, 4.2, 7.11, 7.13
for malicious prosecution, 6.4
as justification for exemplary damages,
4.2, 28.7, 29.7, 30.4
trespass committed with, 11.9

Malicious prosecution, 6.4
Managerial capacity, 10.14
Market value, 7.6, 7.10, 31.3, 31.4

Maximum medical improvement
definition of, 23.14
multiple alternative impairment ratings,
23.9
negating Division’s finding of, 23.7, 23.8

Medical care, future, 28.3
Medical expenses. See Expenses, medical

Mental anguish
damages, none for conversion claim, 7.10
damages under Theft Liability Act, 7.6
definition of, 29.3—29.6, 30.3
personal injury damages for, 28.3, 28.5
loss of consortium by child, 28.11
submitting with physical pain damages,
28.3
survival damages for decedent's, 30.3
wrongful death damages for, 29.3—29.6

Minor child. See also Adult child, parents'
claim for death of; Child
when born after parent's death, 29.4

523

SUBJECT INDEX

Minor child—continued
claim of, for parent's death, 29.4
death of, 29.5
degree of care for, 2.1, 2.3
injury of, 28.5
liability for providing alcohol to, 5.5, 5.6
loss of earnings of, 28.5, 28.6, 29.5
loss of parental consortium, 28.10, 28.11
loss of services of, 28.6, 29.5
operation of motor vehicle by, 10.10

Mitigate, failure to, 4.1, 4.3, 28.9

Motor vehicle
child's operation of, 10.10
defective, 10.13
joint enterprise and, 10.11
loaned, 10.12, 10.13
negligent entrustment of, 10.12, 10.13

Multiple defendants. See also Contribution
defendant
exemplary damages, separate question for
each defendant, 7.12, 28.7, 29.7, 30.4
plaintiff's negligence not in issue, 28.1,
29.1, 30.1, 31.4

Multiple plaintiffs
exemplary damages, apportionment of,
7,12, 28.7, 29.7, 29.8, 30.4
instruction conditioning damages
questions for, 28.1, 29.1, 30.1, 31.1

Natural, “in a natural and continuous
sequence," 2.4, 3.1

Negligence. See also Common-law
negligence; Contributory negligence
in animal injury cases, 13.3-13.5
basic definitions in actions (see Basic
negligence, definitions)
basic questions in actions (see Basic
negligence, questions)
comparative, 4.1, 4.3, 4.4
contributory (see Contributory negligence)
of decedent, 29.3—29.6, 30.3
gross (see Gross negligence)
of injured parent, 28.11

524

of injured spouse, 28.4
of multiple parties, 4.3, 4.4
of plaintiff, 28.3, 28.5, 28.9, 31.3, 31.4
if no claim of, 4.1, 5.1, 28.1, 29.1, 30.1,
31.1
use of term, 4.3

Negligence per se, Introduction 6, ch. 5

broad-form, 5.3

and common-law negligence, 5.1
excuse, 5.2

definition of, 5.1

dramshop liability, 5.5, 5.6
affirmative defense, 5.6

heart attack as excuse for, 5.2

recognized excuses for, 5.2

simple standard, 5.3

Negligent entrustment

comparative causation question if both
entrustor, entrustee joined, 10.12

of defective vehicle, 10.13

double entrustment case, 10.12

no driver's license, 10.12

reckless or incompetent driver, 10.12

statutory standard, 10.12

New and independent cause, Introduction
4(c), 3.1

*No duty," ch. 3 note

Nondelegable or absolute duties of
corporation, 7.13

Nondependent parents, 26.5
Nonemployee, respondeat superior, 10.10
Nonsubscribing employer, 3.2
Nonpecuniary wages, definition of, 22.4

Note-taking, instructions on jurors’, 1.2,
1.3

Notice to employer of injury, 20.2, 20.3

Nuisance

abnormal and out-of-place conduct, 12.3
actions, generally, 12.1

damages for, 12.5, 12.6

date of accrual of, 12.4

definition of, 12.1, 12.3

double recovery generally not allowed,
125, 12.5

nature of, permanent or temporary, 12.4

private, 12.2

public, 12.3

statutory, 12.3, 12.5

Objection, as method of preserving error
on appeal, 32.1

Occupational disease, ch. 19

aggravation, acceleration, or excitement
of, 19.1

date of injury for, 19.2

definition of, 19.1

injury theory vs. occupational disease
theory, 19.1

last injurious exposure, 19.3

mental trauma, 19.1

ordinary diseases of life distinguished
from, 19.1

types of, 19.1

“Occurrence,” use of, 4.1, 4.3, 4.4

One-way street, driving wrong way on,
MI

*Open and obvious," ch. 3 note

Ordinary care
definition of, 2.1
negligence and, 2.1
standard of, not applicable to all, 3.1

Out-of-state conduct, exemplary damages
and, 7.12, 28.7, 29.7, 30.4

Pain and suffering. See Mental anguish;
Physical pain, damages for

Parallel theories on damages, 1.12

Parent
claim of
for death of child, 29.5, 29.6
for injury of child, 28.5

Subject Index

for loss of services of child, 28.6
death of, claim of surviving child for, 29.4
eligible, 26.5
injury of, claim of child for, 28.10, 28.11

Parental consortium, 28.10, 28.11

Past and future damages, separate
answers for, 28.3—28.6, 28.11, 29.3—
29.6

Pecuniary interest, 10.11
Pecuniary loss, 29.3-29.6

Penal Code violation
driving while intoxicated, 5.1
exceptions to limitations on exemplary
damages, 7.12, 28.7, 29.7, 30.4

Percentage of responsibility, definition of,
4.1, 4.3

Peril
discovered peril, ch. 3 note
emergency, 3.3
imminent peril, ch. 3 note

Personal comfort, 17.4

Personal injury damages. See Damages,
personal injury

Physical impairment, elements of
damages for, 28.3, 28.5

“Physical injury," use of, 28.10

Physical pain, damages for, 28.3, 28.5,
30.3

*Physical structure of the body,"
definition of, 26.1

Pollution trespass, liability for, 11.2
Precedents, use of, Introduction 3

Preexisting injury or condition,
exclusionary instruction for, 28.8
Prejudgment interest
on conversion damages, 7.9

on exemplary damages, not recoverable,
7.12, 28.7, 29.7, 30.4

525

SUBJECT INDEX

Prejudgment interest —continued
on loss of inheritance damages, not
recoverable, 29.3, 29.4
on property damages, 31.3, 31.4
on survival damages, 30.3, 30.4

Premises liability, in animal injury case,
13.1

Preponderance of evidence, definition of,
Introduction 4(f), 1.3

Preservation of charge error, 32.1, 32.2
Presiding juror, duties of, 1.3

Privilege
Fifth Amendment, 1.11
generally no inference, 1.10

Privilege to investigate theft, instruction
on defense of, 6.1, 6.3

Probable cause, definition of, for
malicious prosecution, 6.4

Producing cause, 13.3, 13.5, 23.10, 26.1

Property
consent to appropriation of, 7.5
conversion of, 7.10, 7.11
cost of repairs, 31.4
definition of, 7.2
definition of theft of, 7.2
liability for theft, ch. 7
loss of use, 31.3, 31.4
owner, identifying, 7.1
salvage value of vehicle, 31.3

Property damages. See Damages, property

Proportionate responsibility, 4.1, 4.3, 4.4,
5.5. See also Contributory negligence

Proximate cause
definition of, 2.4
intoxication as, 5.5
joint submission with negligence, 4.1
new and independent cause, 3.1
in nuisance actions, 12.5
presumption of, in double-entrustment
case, 10.12
sole, 3.2

526

Punitive damages. See Exemplary damages

Reckless driver, negligent entrustment,
10.12

Recreational, social, or athletic activities,
employee engaged in, 17.5

Remarriage of surviving spouse, 29.3
Remedies, election of, 18.9

Rental income, lost, 7.6

Repair of property, damages for, 31.4

Request for submission as means of
preserving error, 32.1

Rescue, doctrine of, ch. 3 note

Respondeat superior liability
doctrine of, 10.6
under Dramshop Act, defense to, 5.6
nonemployee, 10.10

Responsibility, use of term, 4.3. See also
Proportionate responsibility

Responsible third party, 4.1, 4.3

S
Salvage value, 31.3

Scope of authority. See Scope of
employment

Scope of employment, 10.6, ch. 17
deviation, 10.7
injury causing death in, 26.1

Seatbelt, evidence of failure to wear, 4.1

Separate property, recovery for loss of
consortium and services as, 28.4

Service, diligence in procuring, 14.1
Service, theft of, 7.3

Settling person, 4.1, 4.3

Social host liability, 5.5

Sole proximate cause, 3.2

“Special” employee. See Borrowed
employee; Employee

Spoliation, 1.13

Spouse
death of, 29.3
eligible, 26.2
injured, negligence of, 28.4
remarriage of, 29.3
surviving, claim for wrongful death by,
29,3

Standard of care. See Degree of care

Statutory language, use of, in workers?
compensation, 15.1

Subcontracting to avoid liability, 16.7
Substantial factor, 2.4, 3.1

Supplemental income benefits, ch. 24
active effort to obtain employment, 24.4
entitlement, 24.1
reduced earnings as direct result of, 24.2,

24.3
refusal of vocational rehabilitation
services, 24.6

Survival damages. See Damages, survival

Taxes. See Income taxes, instruction on
whether damages are subject to

Technology, electronic, jurors? use of, 1.1—
13

Temporary direction, 17.3
Testimony, jury's disagreement about, 1.7

Texas Constitution, exemplary damages
authorized by, 29.7

Texas Theft Liability Act, ch. 7
Theft, definition of, 7.2

Theft liability, ch. 7

Theft of service, 7.3
Third-degree burns, 25.7

Subject Index

Third party, negligence of, in injury to
spouse, 28.4

Third-party defendant. See Contribution
defendant; Multiple defendants

Timeliness of workers? compensation
claim, ch. 20
Traveling, injury during, 17.6-17.8
Trespass, ch. 11
generally, 11.1
committed with malice, 11.9
damages for, 11.3, 11.5-11.9
intentional, 11.4
permanent vs. temporary, 11.5
pollution, 11.2
to try title, 11.2

Unanimity instructions, 4.2, 7.11, 7.13,
10.14

Unanimous answer, exemplary damages,
1.3, 1.4, 28.7, 29.7, 30.4

Unavoidable accident, 3.4

Uninsured/Underinsured motorist, 4.1,
4.3, 28.3

Unlawful detention by threat, instruction
on, 6.2

V
Vehicle. See Motor vehicle

Vicarious liability, ch. 10

in employment relationship, 10.1—10.4
Vice-principal

definition of, 10.14

as employer, 5.6

Vocational rehabilitation services, refusal
of, 24.6
W

Wages, non—workers? compensation. See
Earning capacity, loss of; Earnings of
minor child

527

SUBJECT INDEX

Wages, workers’ compensation
average weekly wage, 22.1—22.3
definition of, 22.3

definition of, for average weekly wage,
222

nonpecuniary wages, 22.4
similar employee, definition, 22.5
similar services, definition, 22.6

Waiver, in workers? compensation, 20.1

Wild animal, injuries caused by, 13.1, 13.5

528

Wills and law of intestacy, 29.3, 29.4

Workers? Compensation Act
employer's immunity under, 4.1, 4.3, 10.5

exemplary damages against employer
covered by, 29.7, 30.4

jury charges under, chs. 15-27
nonsubscribing employer actions, 3.2
Wrongful death actions, standard of

recovery, 4.2. See also Damages,
wrongful death

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